Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia376782014
ia376832014
ia376882014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Determination & Reasons Promulgated
On 20th April 2016
On 13th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ms Mee Eng ling (first appellant)
master Kah Heng chong (second appellant)
master Kah Wai chong (third appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr Manjit Gill, QC
For the Respondent: Ms R Pettersen (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Lagunju, promulgated on 9th January 2015, following a hearing at Birmingham, Sheldon Court on 4th December 2014. In the determination, the judge allowed the appeal of the Appellants, whereupon the Respondent Secretary of State applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants comprise a mother and her two children. The mother, the principal Appellant, was born on 7th June 1958. The second Appellant, the eldest child, was born on 15th October 1995. The third Appellant, the second child, was born on 3rd March 1997. All are citizens of Malaysia. The second and third Appellants are both males. All appeal against the decision of the Respondent dated 7th September 2014 refusing their application for leave to remain in the UK on the basis of a claim under Article 8 of the ECHR.
The Appellants' Claim
3. The first Appellant, the principal Appellant, was born and grew up in Malaysia. In around 1994 she left Malaysia and moved to Switzerland with her husband. Her two sons, the second and third Appellants were then born in Switzerland in 1995 and 1997. The husband's business then failed and the family relocated to Malaysia in 2003. At this point, there appears to have been a negative impact on the children. The family remained in Malaysia for approximately two years and the first Appellant then applied for herself and her two children to come to the UK as dependants of her husband who was in the UK on a student visa. Unfortunately the marriage then broke down in 2008. Until that time, the Appellants had been in the UK lawfully. The Appellants did not return once their leave had expired but remained in the UK unlawfully. Eventually, the first Appellant made an application for leave to remain outside the Rules in July 2010. These applications, although made on 29th July 2010, were not decided until 7th September 2014, nearly four years thereafter. It is unquestionable that there has been inordinate delay in the making of the decision by the Respondent Secretary of State. This is despite numerous letters having been written, judicial review applications made, and promises in consent orders, to make a decision speedily, followed by withdrawals of decisions before the First-tier Tribunal, including at hearing, thereby leading to unedifying state of affairs. Unfortunately, this is the backdrop to this appeal.
The Judge's Findings
4. The judge considered the appeal on the basis of paragraph 278ADE, as this provision had been considered by the Secretary of State, and then looked at Article 8 ECHR. It was observed that the principal Appellant was neither in a relationship with Mr Norman, a British citizen living in the UK, even though she had overstayed in the UK herself (see paragraph 17). The judge reminded herself that the test under paragraph 276ADE is that the Appellants would face "very significant obstacles" to integration back into Malaysian society, and then consider the facts appertaining to this appeal. The judge observed that after the principal Appellant had moved with her estranged husband to Switzerland just to help him set up a business there,
"It is clear that the first Appellant settled into life in Switzerland and put down roots there. She had two children, put them in education and it is likely that they believed that they would live there for a considerable length of time, thus leaving their life in Malaysia behind and starting a new life in Switzerland" (paragraph 26).
The determination records how the principal Appellant,
"Gave up her life and cut all ties to their home countries expecting that they would not return. After spending nine years in Switzerland I find that she could not have had any significant ties to Malaysia when she returned in 2003. I consider also that her connection in Malaysia has become even more remote after spending almost ten years in the UK. I find that she is unlikely to have retained any connection to life in Malaysia and that includes speaking the language" (paragraph 29).
Thereafter considerable attention was paid by the judge to the issue of reintegration and "integration back into life in Malaysia very difficult" (see paragraphs 30 to 32).
5. The judge also had regard to the fact that there was a subsisting relationship with Mr Norman and observed that, "I find this very close friendship and help and support of abundance normal over the years including providing her with a house and a car, is what in part solidifies the first Appellant's ties to the UK and would make further integration in Malaysia difficult" (paragraph 36).
6. It was, however, in part, in respect of the second and third Appellants, the two sons of the principal Appellant, that the judge emphasised the very significant obstacles that they would face in reintegrating into Malaysian society. Noting that "there would be very significant obstacles to their integration in Malaysia " (see paragraph 42) the judge observed how the second Appellant:
"Had great difficulty on leaving Switzerland in 2003 and adapting to life back in Malaysia; ......... degree of psychological trauma as a result of the move. Apparently he found it difficult to speak Malay and found schooling very difficult" (paragraph 43).
7. There was also a report prepared by Dr Latif dated 2nd May 2012 that the judge had regard to (see paragraph 44). The second Appellant was now age 19 but the applications to the Home Office had been made when he was still a minor "and the delay they have had to endure whilst waiting for the reconsideration of their applications has moved things along somewhat" (see paragraph 45). The judge was wise to note the fact that there was "the need to promote the welfare, safety and security of minor children" with respect to both these boys (paragraph 46).
8. The second Appellant had gone on to excel at his GCSE and A-level results and was undertaking a bachelors degree in mathematics at King's College London and the third Appellant had also done exceptionally well in his GCSE results, and was predicted A grades in his A-levels (see paragraph 47). In addition they were involved in badminton and music and other extracurricular activities. The judge went on to note that the boys were deprived of a relationship with their father at a young age "thus they have already experienced a great deal of upheaval and instability in their lives" (paragraph 49).
9. The conclusion reached by the judge was that, "the fact that they now feel happy and settled, their educational achievements and future aspirations, their assimilation is to Mr Norman's life and his family suggests that integration at this stage would prove very difficult" (paragraph 50). This was not least because:
"The only home they have known for the last nine years would create significant obstacles to their integration in Malaysia. They would have to deal with a new language, culture, different educational system, loss of attachment from the UK including Mr Norman and his family, from the friendships they have formed and cultivated over the years and instability caused by the move, all of which, according to the expert report, is likely to have detrimental long-term effects on their wellbeing ...." (paragraph 50).
10. Accordingly, the judge had little difficulty in observing that Article 8 was engaged, and applying the decision in Shahszad [2014] UKUT 00085, the judge concluded that there would be a disproportionate interference with their Article 8 rights for all the reasons that had been given in the preceding paragraphs.
11. At the time of the decision by the First-tier Tribunal Judge the third Appellant was still a minor and the judge has observed that, "it would be disproportionate to expect him once again to give up the life he has established here, considering the long-term effects it may have on his future" (paragraph 54). The judge did not end the determination without having due regard to Section 117B of the Immigration Act 2014 and noting that the three Appellants spoke English and would not be a financial burden on the UK given the support they had from Mr Norman (see paragraph 55).
12. The appeal was allowed.
Grounds of Application
13. The grounds of application state that the judge allowed the appeal of the principal Appellant and her two sons age 19 and 17 on Article 8 grounds. The Appellants had entered as dependants of a Tier 4 Migrant but following the breakdown of the marriage the principal Appellant and her two sons remained unlawfully. Their applications for leave to remain were subsequently made on the basis of a new relationship. The judge had found that the requirements of the new Rules had not been met and that the relationship was a fabrication although there was a friendship between the parties. She concluded however that the Appellants would experience significant obstacles to integration in Malaysia. However, the judge's conclusions on reintegration were misconceived. A period of disruption would exist in any case of removal. The matter had to be examined holistically. The judge failed to have any regard to the pursuance of the family/private life in the UK at a time when her status was precarious. Indeed they had no leave at all. Section 117 had been insufficiently considered.
14. On 20th May 2015, permission to appeal was given by the Upper Tribunal, after the First-tier Tribunal below had declined to give permission.
15. A Rule 24 response by the Appellants' representatives maintains that if the Respondent succeeds in establishing error of law, then the Appellants would submit that the judge had erred in concluding that the relationship between the principal Appellant and Mr Norman could not be classified as "partners". This was because on the judge's own findings and on the evidence before her, there was no reasonable basis for concluding that the principal Appellant and Mr Norman were not in an intimate relationship. This was clear from what was said by the judge at paragraphs 34 to 35 in any event. Moreover, the judge was sent further additional documents very shortly after the hearing and the judge failed to have regard to them. Finally, the Appellants would rely upon the compelling evidence which was before the learned judge, such as the evidence of the principal Appellant that she had been sold as a child and the impact of this on the removal of her sons with her.
Submissions
16. At the hearing before Ms Pettersen, appearing on behalf of the Respondent Secretary of State, submitted that the judge did have the report of Dr Latif (at paragraph 44) referring to the psychological difficulties experienced by the boys, but such anxiety and psychological ill-health did not mean that the boys would have difficulty in reintegrating in Malaysian society. The application was made in 2010 outside of the Immigration Rules, and refused in 2011, but then this refusal was withdrawn in 2012. The skeleton argument now argues that because it was withdrawn it must have been in error. This did not follow. The principal Appellant and her children had for a number of years been unlawfully in the UK. They could not succeed under paragraph 276ADE. Under Article 8 they could not have succeeded if regard had properly been had to the fact that their immigration status here was "precarious".
17. For his part, Mr Gill submitted that the essence of the appeal by the Respondent Secretary of State was that the judge had misconceived the Rules. However, the judge had placed the requirement of "very significant obstacles" right at the forefront of her mind when considering the position under the Rules. This was clear from the use of precisely this formula at paragraph 23 of the determination. Thereafter, from paragraphs 24, onwards, and particularly at paragraphs 30 to 33, the judge was looking at different ways of how this test could not be met and using an interplay of different words to demonstrate how reintegration would indeed be difficult for the Appellants, such that the "very significant obstacles" test could not be satisfied. At the end of that consideration the judge referred again to "very significant obstacles to their integration in Malaysia" (at paragraph 42). Therefore, it was clear that this was nothing more than a disagreement with the judge's findings. It was true that along the way the judge had used language such as "significant ties" (paragraph 29) or "significant obstacles" (paragraph 37), but essentially she used reintegration, and the judge here was clear (paragraph 30) that this would not reasonably be possible. The second and third Appellants have suffered psychologically and Dr Latif's report was powerful in this effect.
18. To sum up, Mr Gill submitted that the following was the situation here. The first Appellant had left Malaysia about twenty years ago. And there had only been a short return of one or two years. She did not speak Malay language. She had no family and no connections left there. On the other hand, she had strong significant ties to the UK. Her history in Malaysia had been a difficult and traumatic one as well. The judge took this into account and made a decision that was open to her. As far as the second and third Appellants were concerned, they had both been born outside Malaysia. They had only spent about two years of their life there. They have lived European lives and in particular British lives. That the third Appellant had great difficulties in Malaysia and suffered psychological trauma (see paragraph 43). They had no familiarity with the Malay language (see paragraph 43). The judge accepted the findings of the psychological report (see Appellants' bundle page 2 to 5). That the boys are anxious about returning to Malaysia and that it is likely that their emotional and behavioural responses would change and that their future development, education and family life and future careers would also be disrupted. The judge correctly took into account the need to promote the welfare, safety and security of minor children (see paragraph 46) in considering paragraph 276ADE. She noted that there is no bright-line to be drawn between those were under 18 and those who are just a little over 18 (see paragraph 45). She took into account the interests of both Appellants (see paragraph 51). No complaint is made about any of these findings. Indeed, the specific factual findings have not been questioned. The only argument is that the Respondent states that the overall conclusion about the judge was wrong and that the requirements of paragraph 276ADE are not met. This is simply a dispute of fact.
19. Finally, as far as Section 117B was concerned this did not modify Article 8 jurisprudence in any sense. The way in which Article 8 is interpreted and applied is as has been set out as long ago as the case of Huang and EB (Kosovo). Furthermore, Section 117B(6) makes it clear that the public interest does not require the first Appellant's removal because the third Appellant is a qualifying child and Section 117B defines a "qualifying child" as a person who has lived in the UK for a continuous period of seven years. Whilst it was accepted that the children could not be removed then it followed that the principal Appellant also could not be removed. There was simply no error of law here. This amounted to just a disagreement with the judge's findings.
No Error of Law
20. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. This is a case which has had a torturous history. The applications were made as long ago as 29th July 2010. There has been considerable delay and legal wranglings with consent orders made and not complied with for speedy decisions, and eventually the matter has come before the First-tier Tribunal who has made a decision in a manner that is clear, comprehensive, and legally correct. The judge considered paragraph 276ADE and had in mind the fact that the Appellants had to show that there would be "very significant obstacles" to their integration into Malaysian society. The judge gave ample reasons in the ensuing paragraphs for why this was the case relying also upon the report of Dr Latif. That conclusion is not one that was unreasonable or could not have been open to the judge given the factual background to this appeal with the principal Appellants having lived European lives in Switzerland, and for the last ten years in the United Kingdom. On the other hand, they have severed their ties to Malaysian society. The judge had to take into account the need to promote the welfare, safety, and security of the minor children and did so (see paragraph 46) and was correct in holding that there was no bright-line to be drawn between those who are under 18 and those who are over 18.
21. Second, as far as Article 8 was concerned, although the family became overstayers, this happened due to circumstances beyond the control of the second and third Appellants and the children could not be penalised for this: (see ZH Tanzania). It also is significant that the jurisprudence concerning the Secretary of State's delay in making the decisions remains relevant and the delay here has been inordinate and unjustifiable. That significantly weakens the public interest in the removal of overstayers and this has been judicially recognised in EB (Kosovo). This is a case where the second and the third Appellants have lived outside Malaysia nearly all of their lives; they do not speak or read or write the Malay language; and they have grown up in the British cultural context, and have done exceptionally well in British society. Further, they have a close and supportive family and the support of Mr Norman, for the provision of a house and a car was well-recognised by the judge. As against this, they have nothing to go back to in Malaysia.
22. Accordingly, this amounts to nothing more than a disagreement with the judge's findings and there is no error of law.
Notice of Decision
23. There is no material error of law in the original judge's decision. The determination shall stand.
24. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016