Tribunal decisions

The decision

IAC-AH-dh-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/37266/2014
IA/37271/2014
IA/37274/2014
IA/37277/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 November 2016
On 10 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

GH, CT, JT and NT
(ANONYMITY DIRECTIONS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr T Bobb, of Aylish Alexander, Solicitors
For the Respondent: Ms Z Ahmed, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellants against a decision of the First-tier Tribunal (Judge Peter-John S White) dismissing their appeals against the respondent's decision made on 17 September 2014 refusing them leave to remain and deciding to remove them from the UK.

Background

2. The appellants are citizens of Ecuador. The first appellant was born on 28 November 1970 and is the wife of the second appellant born on 8 January 1974. They have two sons, the third and fourth appellants, born respectively on 11 December 2006 and 1 October 2009. The first and second appellants claim to have entered the UK with their eldest daughter D on 12 August 2000. D was born on 9 October 1992 and was seven years old when she arrived. Their entry was illegal and they have remained in the UK since then and subsequently the third and fourth appellants were born here.

3. On 2 November 2007 the first, second and third appellants and D applied for leave to remain on human rights grounds outside the Rules. Their application was refused on 24 January 2010. On 25 September 2012 the appellants made a further application for leave to remain but that was rejected as invalid on 18 October 2012. On 28 October 2012 D applied for leave to remain on human rights grounds and on 19 September 2013 she was granted 30 months' leave to remain under para 276ADE(1)(v). On 31 October 2012 the appellants resubmitted their application which was accepted as valid but refused on 18 October 2013. They lodged an application for judicial review on 16 January 2014 which was withdrawn by consent. By an order signed on 11 March 2014, the respondent agreed to reconsider the application and, if the refusal of leave was maintained, to make a decision giving a right of appeal to the First-tier Tribunal. On 17 September 2014 the respondent again refused leave to remain and decided to remove the appellants. This is the decision under appeal.

4. The respondent was not satisfied that the appellants could meet the requirements of the Immigration Rules ("the Rules") on the basis of family life or private life or that there were exceptional circumstances which would justify a grant of leave outside the Rules.

The Hearing before the First-tier Tribunal

5. The judge heard oral evidence from the first and second appellants and their daughter D. The appellants told the judge that they had come to the UK in 2000 in pursuit of a better life after they were made redundant in Ecuador with help from the second appellant's sister who was living here. They first went to Madrid but were unable to find work there so came to the UK. They were supported at first by the second appellant's sister and subsequently both appellants have found work as cleaners. The judge noted that they have never had leave to remain or permission to work. All three witnesses told the judge that D would not be able to cope on her own financially or emotionally maintaining that she could not go back with them to Ecuador. D told the judge that she would have no home or money if she stayed here alone but it would be even worse if she went back to Ecuador, that was not an option. The judge commented that he found this evidence, that she would insist on adopting the worst possible course, no alternative being even considered, incomprehensible save as a device to pressure the Tribunal into granting leave to the rest of the family because of her refusal to leave the country [12].

6. The appellants also gave evidence that it would be impossible for the adult appellants to find work in Ecuador because they were too old and that no-one over 25 could get a job. He heard evidence about their extended family in Ecuador. The first appellant said that she had eight brothers and her parents there and that she was in touch with her parents but not with her brothers. There was then a mention in her evidence about a sister, a teacher, and the first appellant corrected her evidence saying that she had six brothers and two sisters in Ecuador. The second appellant agreed that he had a mother and brother in Ecuador and that there were uncles and aunts but they were not in contact with these relatives.

7. The judge found that it was entirely clear from the evidence that the appellants had a large extended family in Ecuador and that the evidence about the low levels of contact and the reasons given were inconsistent, inherently improbable and ultimately incredible. He was not persuaded that any weight could be given to the suggestion that none of the extended family in Ecuador would be able to provide any assistance at all to the appellants were they to return [19]. The judge added in [22] that he was not satisfied that any of the three witnesses from whom he heard was a credible or reliable witness or that he could safely accept their evidence where it was uncorroborated save in so far as it was an admission against interest and likely on that account to be true. The adult appellants had come to the United Kingdom in 2000 without leave and in search of a better life. They had remained without leave and worked without permission justifying this on the basis that as parents with children to support they had no choice, matters they regretted. The judge said it was plain that they had been and remained wholly unwilling to contemplate the possibility of return to Ecuador whatever the temporary difficulties imposed by their lack of status and that they had been determined to settle in the UK by one means or another.

8. The judge accepted that D might find it difficult to cope both financially and emotionally if her parents and brothers returned to Ecuador while she stayed in the UK and if they were unable thereafter to provide her with any support, although he did not accept that her situation would be as desperate as the family sought to portray. He found that there was extended family on both sides in Ecuador and rejected the claim made that they had virtually no contact with most of them and that there would be no possible support available from any of them. He also rejected the evidence that neither of the adult appellants would be employable if they returned to Ecuador which he regarded as a startling claim which could only succeed if backed up by significant independent and objective evidence of which there was none.

9. It was accepted at the hearing that none of the appellants could succeed under the Rules for the reasons set out in the decision letter coupled with the acceptance that the third appellant had not been in the United Kingdom seven years at the date of the application made in October 2012. As the appellants were relying on rights under article 8 but could not bring themselves within the Rules, there needed to be an examination of whether there were compelling circumstances not sufficiently covered by the Rules which would make removal disproportionate. The judge accepted that there were such circumstances. He had no doubt that the appellants had established both private and family life and that, although she was now an adult, that family life included D. The proposed interference had consequences sufficient to engage article 8. The decision was lawful and in pursuit of a legitimate aim and, therefore, the critical issue was whether the interference was proportionate to the legitimate aim pursued.

10. The judge then said at [28] that decisions which affected children must be made against the background that their best interests were to be regarded as a primary, although not a paramount, consideration. They were not determinative but they should be considered in advance of other matters and no other single interest should be regarded as more important. He said that it was undoubtedly in the best interests of children to be brought up in a stable and secure family with both parents where that was possible as it was in the present case. It was equally undoubtedly in the best interests of children that they should not be separated and generally that their lives and in particular their education should be disrupted as little as possible. It was usually regarded as in the best interests of children that they should grow up in the country in which they were nationals and so enjoy the full cultural and other benefits of their system in a situation where they could have contact with grandparents, cousins and other extended family.

11. The judge said that it had been recognised for many years that where children live in one country for a significant period of time the point was likely to be reached at which they are so far integrated in that country that removal to another country of which they were nationals might be contrary to their best interests. The jurisprudence and now the Rules had eventually converged on a period of seven years as being the time after which it may no longer be reasonable for the child to be required to leave the UK but this was not an automatic cut-off point. As had been pointed out the years from birth to seven were of much less importance in terms of the child's development and social integration than the period of seven years starting from the age of four or older. He noted that the fourth appellant had not yet been in the UK for seven years but the third appellant had been here for nine and that was clearly a significant period which might suggest that he had reached the stage where removal would be contrary to his best interests.

12. The judge went on to consider at [32] the disruption to the education of the third and fourth appellants but said that neither was at a crucial stage in their education in this country. There was no evidence before him about the education system in Ecuador or how in practice the move would affect their education. At [33] the judge considered the disruption to the third and fourth appellants if they were separated from D. He said that such separation would no doubt happen at some stage when she left the family home to form a new life of her own but that did not affect the fact that it would be somewhat disruptive if it were to happen now. However, D was also an Ecuadorian national and had 30 months' leave to remain. If the rest of her family were unable to remain, she would have an unenviable but nonetheless genuine choice to make whether to pursue her chance to remain in the UK without them, prioritising her private life, or to prefer the financial and emotional support of remaining with the rest of the family.

13. At [35] the judge commented that the assessment of the children's best interests formed part only of the broader assessment of proportionality and that he must take account of the provisions of s.117B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). This required him to take account of the fact that maintenance of immigration control was in the public interest, that private life established whilst in the UK precariously or family life whilst in the UK unlawfully carried little weight. The appellants' stay had been unlawful throughout, although the judge accepted that none of the children were in any way to be blamed for that. He noted the provisions of s.117B(6) dealing with the situation of a person who had a genuine and subsisting parental relationship with a qualified child who had been in the UK for seven years, without the limitation that this should be completed by the date of application, and that in such case the public interest did not require removal where a person had such relationship and it would be unreasonable to expect the child to leave the UK.

14. The judge found that in the case of the fourth appellant he was in no doubt that his best interests required that he remain with his parents and elder brother and ideally with his elder sister as well but they were not materially affected by whether that was going to be in Ecuador or in the UK. The case of the third appellant in the light of the greater length of residence was more finely balanced but given the absence of any evidence of specific detriment as opposed to the generalised disruption arising from the move, he was not in the end persuaded that his best interests required him to remain in the UK and he said he was certainly not persuaded that they pointed so strongly to that conclusion as to mean that he should remain in the UK even if necessary without his parents. When considering s.117B(6) the judge said that the application of that sub-section turned on the same question he had already had to resolve in identifying the best interests of the children. In a case where the parents had no right to remain and the best interests of the children did not suggest that they should remain in the UK, with the implication that leave must therefore be granted to their parents, it followed in his judgment that it was reasonable to expect the children to leave the UK with their parents.

15. Taking into account the adult appellants' immigration history, entering the UK unlawfully and remaining here unlawfully making no attempt to bring themselves to official notice until seven years had elapsed, it was in the public interest that they be removed. The children had received the benefit of a free education to which they had not been entitled and if allowed to remain they would continue to receive such education. There was evidence of registration with GPs and, although he accepted that there was no direct evidence of any treatment received, common sense suggested that it was overwhelmingly probable that children at these ages would have seen their GP a number of times whilst they were growing up. In summary, the judge found that removal would be proportionate to a legitimate aim within article 8(2).

The Grounds and Submissions

16. The grounds of appeal set out three grounds. Ground 1 argues that the judge failed properly to assess the best interests of the third and fourth appellants in that their best interests were not considered first and also that the judge conflated with the best interests of the children issues that had nothing to do with that matter. Ground 2 argues that the judge failed properly to apply s.117B and that the use of the word "unlawful" in s.117B(4) and "precarious" in s.117B(5) contemplate two different scenarios. Sub-section (4) is referring to persons without leave to remain who are illegal entrants and/or overstayers, in which case they would be here unlawfully and sub-section (5) refers to those who have leave to remain but are not settled and/or are settled but face deportation. It is argued that the latter sub-section has no application because the appellants had no leave and therefore their immigration status could not be precarious.

17. It is argued that the judge was wrong to find that little weight could be given to any aspect of their private or family life as family life did not enter into consideration and sub-section (4) was concerned only with family life between those in a relationship and in terms of private life, it would be inimical to the best interests of the children if little weight were given to their private life which, whilst established when unlawfully here, was through no fault of their own. It is further argued that appropriate weight should be given to a qualifying child under s.117B(6). Ground 3 argues that the judge failed to assess properly the first and second appellants' benefit to the community in the light of the decision of the Court of Appeal in UE (Nigeria) v Secretary of State [2010] EWCA Civ 975.

18. Permission to appeal was refused on ground 3 but granted on grounds 1 and 2 for the following reasons:

"... 3. Although it is not arguable that the Tribunal failed to consider the best interests of the children first, it is arguable that the Tribunal failed to undertake a freestanding assessment of the children's best interests, combining it instead with considering whether it was reasonable to expect the children to leave with their parents who had no basis on which to remain in the UK (apart from the parental relationship).

4. It is arguable that the Tribunal may have made a material error of law at paragraph 35 by conflating the test to be applied under 276ADE(iv) with the test of reasonableness under s.117(6) of the NIA (as amended)."

19. Mr Bobb adopted his grounds arguing that the judge had erred by failing to assess the best interests of the children first. He had made adverse findings of credibility in [11]-[22] and only then at [28] onwards, went on to consider the best interests of the children. His previous adverse findings would have had the effect, so he argued, of prejudicing his consideration of the children's best interests. Secondly, it was submitted that the judge conflated other issues when he said at [29] that the best interests of the children must be assessed in the real world and specifically by reference to the facts as they are about the right or otherwise of the parent to be in the United Kingdom referring to EV (Philippines) v Secretary of State [2014] EWCA Civ 874 when at para 33 of that judgment it was clearly said that the best interests of the children were to be determined by reference to the children alone without reference to the immigration history or status of either parent.

20. Mr Bobb also referred to JO and Others (Section 55 duty) Nigeria [2014] UKUT 00517 where the Tribunal had said that the striking feature of s.55 was that it operated to protect all children who were in the UK and there was no qualification such as residence or nationality. He submitted that the judge had fallen into the error of "crystal-ball gazing" and had indulged in speculation. It was irrational to conclude anything other than that the best interests of the third appellant required him to remain in the UK. He submitted that any countervailing factors weighing against the best interests of the children in favour of removal had not been adequately raised on the facts of this case. The judge had erred by failing to take into account all the relevant issues and taken into account irrelevant matters. Further, he had made no specific finding on what the children's best interests were. On ground 2 he submitted that the judge had erred by attaching little weight to the children's private life, s.117B(6) made it clear that appropriate weight must be given to a qualifying child and then weight had to be given to the family relationship between the parent and child and to other considerations which could have an impact on whether it was unreasonable to expect the child to leave the UK.

21. Ms Ahmed submitted that the findings of the judge on the best interests of the children could not be regarded as irrational. His assessment of the issues in [11]-[22] did not relate to the best interests of the children but to the credibility of the evidence he had heard. The judge was entitled to make findings on that aspect of the appeal and then go on to consider the best interests of the children. It was clear from [28] that the judge had regarded that as a primary, although not a paramount consideration, and as a matter which should be considered in advance of other matters. She referred to and relied on MA (Pakistan) and Others v Secretary of State [2016] EWCA Civ 705 and submitted that the judge's approach to the assessment of the children's interests had been consistent with the guidance given in the judgment at paras [46]-[49].

Assessment of the Issues

22. I must consider whether the First-tier Tribunal erred in law such that its decision should be set aside. The first issue raised in ground 1 is the argument that the best interests of the children were not considered first. Permission was not granted on this issue but it was relied on in submissions as part and parcel of the challenge to the way the judge dealt with the issue of the best interests of the third and fourth appellants. For the avoidance of any doubt I am not satisfied that the judge erred in this respect. He stated plainly at [28] that the children's best interests were to be regarded as a primary consideration, they were not determinative but should be considered in advance of other matters and no other single consideration should be regarded as more important. His approach was entirely consistent with the approach set out by the Supreme Court in ZH (Tanzania) [2011] UKSC 4 and Zoumbas v Secretary of State [2013] UKSC 74. The fact that the judge had in earlier paragraphs considered the evidence and made findings on credibility does not alter the fact that the first matter he considered in his assessment of proportionality was the best interests of the children. In any event, so far as the issue of whether he considered the best interests of the children first, in MA (Pakistan) Elias LJ at [56] said that he did not think that it could now be said that courts and tribunals were mandated to look at matters in any particular way such that it was an error of law for them to fail to do so. No doubt it would usually be sensible to start with the children's best interests but ultimately it did not matter how the balancing exercise was conducted provided the children's best interests were treated as a primary consideration.

23. It is further argued that the judge conflated the best interests of the children with other factors. His reference to the comment in EV (Philippines) that the best interests of the children must be assessed in the real world and by reference to the facts as they are about the right or otherwise of either parent to be in the United Kingdom does not indicate a conflation of the best interests of the children with other matters but an indication than when assessing proportionality a balance had to be struck between those various factors. In MA (Pakistan), the Court of Appeal rejected at para 47 a submission that the best interests question automatically resolved the reasonableness question and said that even where the child's best interests were to stay, it may still not be unreasonable to expect the child to leave.

24. In EV (Philippines) at para [35] Christopher Clark LJ set out the factors on which an assessment of the best interests of children would depend, including their age, the length of time they have been in the UK, how long they have been in education, what stage their education had reached or what extent they had become distanced from the country to which it was proposed that they return, how renewable their connection with that country may be, to what extent they would have linguistic, medical or other difficulties in adapting to life in that country and the extent to which the court proposed would interfere with their family life or rights if any as British citizens. These factors were considered by the judge in his assessment. By way of example he considered the length of residence in the UK in [31] and the extent of any disruption to their education in [32]. He said that he had no detailed evidence of particular social links formed by either appellant whose disruption would be particularly harmful and did not think much weight could be attached to that factor. He took into account the disruption if the third and fourth appellants were to be separated from their sister D but he was entitled to note that she was an Ecuadorian national who had what he described as "a perhaps unenviable but nonetheless genuine choice to make" on whether she would remain in the UK if her parents and brothers return to Ecuador.

25. I am satisfied that the judge took all relevant matters into account when considering the best interests of the children. His conclusions are set out in [34]. So far as the fourth appellant was concerned he found that it was in his best interests to remain with his parents and elder brother and ideally with his elder sister as well but they were not materially affected by whether that was to be in Ecuador or the UK. In the case of the third appellant with his greater length of residence he described the issue as more finely balanced. He noted the greater disruption to his education and his social networks as some indication that it was in his best interest to remain in the UK but on the other hand there were the benefits of enjoying both his own citizenship and culture and forming close bonds with his large extended family in Ecuador. The judge said that given the absence of any evidence of specific detriment as opposed to the generalised disruption from the move he was not persuaded that his best interests required him to remain in the UK and certainly not that they pointed so strongly to that conclusion to mean that he shall remain even if without his parents. These findings on the best interests of the children were conclusions properly drawn from the evidence and not as the grounds assert, "crystal-ball gazing" or speculation. I am not satisfied that there was any conflation of the children's best interests with other factors. There is nothing in the argument referred to in the grant of permission of conflating the test under para 276ADE(iv) of the Rules with the test of reasonableness under s.117B(6). As the judge made clear, the third appellant fell outside the provisions of para 276ADE (iv).

26. The judge went on to consider how his findings on the best interests of the children should be considered in the light of the broader assessment of proportionality in [35]. He was required to take into account the considerations set out in s.117B of the 2002 Act. There is no substance in the argument that he misinterpreted the provisions of sub-sections (4) and (5) which require a judge to give little weight to private life established whilst in the United Kingdom precariously or family life established whilst in the UK unlawfully. The meaning of the sub-sections is clear and, moreover, in Rajendran (s.117B - family life) [2016] UKUT 00138 the Upper Tribunal held that "precariousness" was a criterion of relevance to family life as well as private life cases as an established part of article 8 jurisprudence and that the little weight provisions of s.117B(4)(a) and (5) of the 2002 Act were confined to private life established at a time when their immigration status was unlawful or precarious but that did not mean when answering the public interest question posed in s.117A(2)-(3) that "precarious family life" criteria established on article 8 jurisprudence should be ignored. I am not satisfied that the judge erred in law in his approach to the weight to be attached to private and family life in the light of the fact that the appellants have been in the UK unlawfully, and therefore necessarily, precariously.

27. In the context of s.117B(6) the judge found that it was reasonable to expect the third and fourth appellants to leave the UK with their parents. He took the third appellant's length of residence into account regarding that as a significant factor. But when reaching his decision, he was entitled to take into account wider public interest factors and in particular the poor immigration history of the first and second appellants in accordance with EV (Philippines) at para 37 and MA (Pakistan) at para 45.

28. In summary, when assessing whether it was unreasonable to expect the children to leave the UK and when assessing proportionality, I am satisfied that the judge took account all relevant factors into account and reached a decision properly open to him on the evidence for the reasons he gave.

Decision

29. The First-tier Tribunal did not err in law and its decision stands. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 30 December 2016

Deputy Upper Tribunal Judge Latter