Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/39155/2014
IA/39161/2014
IA/39156/2014
IA/39158/2014
IA/39160/2014
IA/39159/2014
IA/39157/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17 February 2017
On 14 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

KHALIQ AURANGZEB
ROZINA AURANGZEB
SOFIA KOMAL
UMER ZEB
AWAIS ZEB
ISHMA KANWAL
MUHAMMED AYAN ZEB
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE Secretary of State FOR THE Home Department
Respondent

Representation:
For the Appellants: Ms Shaw, instructed by Fountain Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are citizens of Pakistan. By a decision dated 6 December 2016 I found that the decision of the First-tier Tribunal fell to be set aside and gave reasons as follows:
1. I shall refer to the respondents as the appellants and to the appellant as the respondent (as they appeared respectively before the First-tier Tribunal). The appellants are all members of the same family and are citizens of Pakistan. The first and second appellants are the father and mother of the children. The second, third and fourth appellants are now adult children. The sixth and seventh appellants are aged 11 years and 3 years respectively. The first appellant claims to have entered the United Kingdom in 1997. The other appellants were either born in the United Kingdom or entered the country on subsequent dates. The appellants applied for leave to remain outside the Immigration Rules and on the basis of Article 8 ECHR. By decisions dated 26 August 2014, those applications were refused. The appellants appealed to the First-tier Tribunal (Judge Holt) which, in a decision promulgated on 5 May 2016, allowed all the appeals on human rights grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The grounds of appeal assert that the judge entered upon a freestanding Article 8 proportionality assessment without giving adequate or valid reasons for finding there to be exceptional or compelling circumstances. Mr McVeety, for the respondent, told me at the hearing that the Secretary of State objected to the process by which Judge Holt had come to allow the appeals on Article 8 grounds; he accepted that that outcome was not per se perverse on the basis of the facts as found by the judge.
3. It is now well established that there is no “threshold” test for the engagement of Article 8; the majority of applications should now be capable of being determined in accordance with the Immigration Rules (including those parts of the Rules which do not form a complete code) but, equally, if there are circumstances in any given case such as may lead to a proper grant of Article 8 ECHR leave then it would seem to be artificial if not absurd to find in such a case that an appellant’s circumstances are not such to have engaged Article 8 in the first instance. In the light of Mr McVeety’s observations, it follows that an appeal which was capable of succeeding on Article 8 ECHR grounds should not be excluded from consideration simply because some threshold criterion had not be met.
4. The remaining grounds challenge the process by which Judge Holt achieved her determination of these appeals. Here, the Secretary of State is, in my opinion, on firmer ground. First, as the grounds point out, and notwithstanding the care with which Judge Holt has approached the determination of the appeal, there are instances in her decision which where findings are supported by little or no reasoning. At [37] the judge has considered the “117B factors” (she is here referring to the amended Nationality, Immigration and Asylum Act 2002). Judge Holt wrote, “the family are apparently financially self-sufficient, although I do not know upon what basis”. First, the judge has assumed that the family is self-sufficient although the judge acknowledges that there was little, if any, evidence to support that view and, secondly, she appears to have been content to make the finding even though, as she herself admitted, she did not know “upon what basis” such a finding might be legitimately made.
5. The criticism of the judge at grounds of appeal [6] is not, in my opinion, justified. The Secretary of State asserts that the judge has, when quotes paragraph 276ADE at [11], has omitted the words “and it would not be reasonable to expect the appellant to leave the UK”. Whilst it is true that the judge has inaccurately quoted the provisions of paragraph 276ADE, she has turned her mind to the question of the reasonableness of a child leaving the country at [38] and earlier at [32].
6. I am, however, concerned that the judge’s analysis lacks balance. At [39], the judge wrote:
I also consider it to be in [the sixth appellant’s] best interests for the purpose of Section 55 of the Borders, Citizenship and Immigration Act 2009 to remain in the United Kingdom and I find that her best interests should not be compromised “on account of the misdemeanours of her parents.
The judge’s decision was promulgated before the judgment of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705. At [88] Elias LJ wrote:
The second ground was this: having established that it would be in the children's best interest to stay in the UK, the judge's findings are entirely contrary to the guidance in the Supreme Court case of Zoumbas at para.10.7 that a "child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent." I would accept that the judge did contradict that principle when he treated the children's status as precarious, but reading the judgment as a whole it is plain that this was not a significant element in his reasoning. He focused on the very powerful public interest in removing the fathers, and their precarious status certainly was material to the proportionality analysis. For reasons I have explained above (paras.41-42) the conduct of the parents is relevant to their own situation which bears upon the wider public interest and does not amount to blaming the children even if they may be prejudiced as a result.
7. I am not satisfied that Judge Holt has had proper regard to the conduct of the parents in this appeal insofar as their conduct “bears upon the wider public interest”. Instead, she has been concerned (as she puts it) “that the best interests of the children should not be compromised on account of the misdemeanours of the parents”. As the Court of Appeal made clear in MA, there is a difference between blaming a child for the conduct of its parents and that child being “prejudiced” as a result of a proper public interest analysis which may include consideration of the conduct of the parents.
8. For the reasons that I have given above, I find that the decision of the First-tier Tribunal is flawed and should be set aside. I had in mind, when I reserved the decision, in re-making the decision without hearing any further evidence or further submissions. However, I find that, whilst the decision may be re-made in the Upper Tribunal, the Upper Tribunal will be assisted by hearing up-to-date evidence in relation to this large family and also hearing submissions on recent developments in the relevant jurisprudence, including MA (Pakistan).

Notice of Decision
The decision of the First-tier Tribunal which was promulgated on 5 May 2016 is set aside. None of the findings of fact are preserved. The decision will be re-made in the Upper Tribunal (Upper Tribunal Judge Clive Lane) following a resumed hearing in Manchester.
No anonymity direction is made.
2. At the resumed hearing at Manchester on 17 February 2017, I heard oral evidence in English from the first appellant. He adopted his written statement as his evidence-in-chief. He said that he originally arrived in the United Kingdom from Saudi Arabia in 1997. He has his parents in Pakistan (aged 69 and 71 years respectively) who live in a small four bedroom house. They are of modest means. The appellants have a large number of family members living in the United Kingdom.
3. Cross-examined by Mr McVeety, the first appellant admitted that the sixth appellant had been conceived in the United Kingdom whilst his wife (the second appellant) had been visiting him in the United Kingdom. She had entered using a false name or travel document. Asked by Mr McVeety to confirm whether or not the second appellant had thereby committed a criminal offence, the first appellant agreed that she had. Following the conception of the sixth appellant, the first appellant had “sent her back [to Pakistan] after four months”. The first appellant himself denied that he had ever left the United Kingdom since 1997.
4. The first appellant admitted that he had been arrested and prosecuted and imprisoned for using false documents in 2010. Prior to that, he had been working illegally in the United Kingdom. The first appellant said he had, however, notwithstanding his illegal working, paid tax whilst in employment in the United Kingdom.
5. I have considered the evidence given by the first appellant. The burden of proof is on the appellants and the standard of proof is the balance of probabilities. The first appellant did little in cross-examination to improve his immigration history or that of his family. However, I accept that the sixth appellant had been conceived whilst the first appellant and second appellant were living in the United Kingdom, and accept also that the second appellant had entered on a falsely obtained visit visa whilst the first appellant has not, as he claims, left the United Kingdom since he entered in 1997. I say that primarily because I can see no reason why the first appellant should further diminish the immigration history of his family if this evidence were not true. I am persuaded also that, because some of the children were in the United Kingdom at that time, they needed the continuous presence of the first appellant as an adult to care for them.
6. I turn, therefore, to the varying claims of these appellants. As Judge Holt noted in the First-tier Tribunal decision, the sixth appellant appears to satisfy paragraph 276ADE(iv):
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK.
Indeed, the sixth appellant has now been living in the United Kingdom for ten years. The applications in respect of all of these appellants were made prior to July 2014. Paragraph 276ADE(iv) has now been amended since the applications were made to provide also that “it would not be unreasonable to expect the applicant to leave the United Kingdom”. Moreover, as Judge Holt noted, there is psychological evidence from Mr Ward in respect of the sixth appellant and the respondent has not challenged the fact that she is suffering from psychological as well as physical problems. For the avoidance of doubt, I find that, even if she were required by the Rules to prove it, it would not be reasonable to expect the sixth appellant to leave the United Kingdom. She has now lived in this country well in excess of seven years and her medical and psychological problems are such as to render her removal unreasonable.
7. As regards the new evidence concerning the conception of the sixth appellant, I am fully aware that this worsens the immigration history of the family. As Mr McVeety pointed out, the second appellant appears to have committed a criminal offence in order to gain access to the United Kingdom on a falsely obtained visit visa. However, conversely, the first appellant has, as I have found the facts, established by this evidence that he has been living in the United Kingdom just short of twenty years. Indeed, by the time this determination is promulgated, he will have completed twenty years’ continuous residence. I am aware also that I should place limited weight upon that fact in considering the immigration position of the first appellant. Applying Section 117 of the 2002 Act (as amended), I record that the family life in the United Kingdom has been established whilst this family’s immigration status was precarious and that the minor members of the family appear to have received education at public expense and have enjoyed free use of the National Health Service. On the other hand, I need to consider the position of the first and second appellants in relation to paragraph 117B(6) of the 2002 Act:
In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
8. I have started my analysis with the sixth appellant, who appears to have the strongest claim under the Immigration Rules to remaining in the United Kingdom. I find on the face of the evidence that the sixth appellant’s parents (who are not subject to deportation) both have a genuine and subsisting relationship with a qualifying child who has lived here in excess of seven years. I have already found that it would not be reasonable under the Immigration Rules for the sixth appellant to leave the United Kingdom, an assessment which I find applies with equal force under section 117B (6) (b). The public interest does not therefore require the removal of the first and second appellants.
9. As regards the remaining appellants, I accept that they have done very well at school and are now in the unfortunate position of being unable to apply for further education on account of their immigration status. In the error of law decision, I relied upon the Court of Appeal decision in MA (Pakistan) [2016] EWCA Civ 705 (see paragraph [6] of error of law decision). The poor immigration history of the first and second appellants must be regarded as relevant to the situation of the remaining appellants on any Article 8 ECHR assessment which does not (as the Court of Appeal pointed out) amount to “blaming the children even if they may be prejudiced as a result”. However, on the facts as I have found them, the sixth appellant should be allowed to remain in the United Kingdom under the Immigration Rules whilst the operation of Section 117B(6) renders the removal of the first and second appellants, whilst the sixth appellant remains living here, unnecessary on public interest grounds, notwithstanding their appalling immigration history. Having regard to the very significant public interest in removing those who abuse the United Kingdom immigration laws, I am still drawn by the evidence to the conclusion as regards Article 8 ECHR that this closely-knit family functions as a single unit and that through their education, all the children have established very strong private life links here. In addition, as the first and second and sixth appellants are to remain in this country it would, notwithstanding the public interest, be disproportionate to expect the remaining appellants to leave, thereby completely fracturing the close family structure.
10. I have not found this an easy case upon which to deliberate, primarily because of the flagrant disregard for the United Kingdom’s immigration laws shown by the first and second appellants. However, it is my judgment that, for the reasons which I have given above, the appeals of all the appellants should be allowed.

Notice of Decision
11. These appeals are allowed.
12. No anonymity direction is made.

Signed Date 3 March 2017

Upper Tribunal Judge Clive Lane