Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/41375/2014
IA/41380/2014
IA/41383/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 18th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Olaide [S]
[J S]
[P S]
(ANONYMITY DIRECTION Not Made)
Respondents

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondents: Mr N Aborisade of OA Solicitors

DECISION AND REASONS
1. The Respondents to this appeal are mother and two children. The First Respondent was born on 22nd October 1965 and her two children [J] and [P] were born on 4th June 2003 and 11th October 2010 respectively. The background to this matter was that on 3rd June 2005 the First Respondent arrived in the United Kingdom with the older of the two boys, having obtained entry clearance as visitors valid until 25th October 2006. They overstayed and in 2007 [J]'s father came to the United Kingdom and this was followed on 11th October 2010 with the birth of the Third Respondent. It is a significant part of this case that [P] suffers from sickle cell anaemia. I say it is significant but it was a factor which the judge in coming to his view overall "put into the mix".
2. On 22nd August 2012 the Respondents and each of them made application for leave to remain in the United Kingdom on Article 8 grounds. On 12th September 2013 decisions were made to refuse the applications. Following judicial review proceedings there was reconsideration giving rise to a right of appeal such that the matter first came before Judge of the First-tier Tribunal Oliver on 20th April 2015. That led to an application for permission to appeal and the matter was remitted to the First-tier Tribunal, eventually to come before Judge of the First-tier Tribunal Hodgkinson sitting at Hatton Cross on 11th February 2016 and it is his decision with which I am concerned. Judge Hodgkinson allowed the appeals of each of the Respondents with the appeals of the First and Second Respondents being allowed under the Rules and that of [P] by having regard to the wider application of Article 8.
3. Not content with that decision by Notice dated 26th February 2016 the Secretary of State made application for permission to appeal to the Upper Tribunal. The grounds were based on the judge having materially misdirected himself on the law. Although the grounds ran to some seven subparagraphs Mr Whitwell crystallised the grounds by submitting that what the judge had done was to focus on the issue of reasonableness through the prism of the Second Respondent and taking that as a starting point. The grounds made reference to EV (Philippines) [2014] EWCA Civ 874 and also to the Supreme Court decision in Zoumbas [2013] UKSC 74. A further aspect of the grounds not pursued before me made reference to the Court of Appeal decision in GS (India) [2015] EWCA Civ 40.
4. On 8th August 2016 Judge of the First-tier Tribunal Colyer granted permission and said at paragraph 2:
"2. The Respondent asserts that the judge made a material error of law by focusing on the Appellant's children continued education in the UK rather than any continuing right to that education when deciding if it is reasonable for the children to leave the United Kingdom. As none of the Appellant's children are British citizens, it is argued that that should have been the starting point for the consideration of whether it is reasonable for the Appellant's children to return to Nigeria with her as she has no right to remain in the United Kingdom. The Respondent submits that the judge failed to do this and the findings on reasonableness of removal for children is not in line with the findings of the Court of Appeal or the Supreme Court decisions in EV (Philippines) or Zoumbas."
5. Mr Whitwell took me to the various authorities beginning with the case of E-A (Article 8 - best interests of child) Nigeria [2011] UKUT 315 being a decision of Blake J, then President of the Upper Tribunal. At paragraph 29 Senior Immigration Judge Jarvis writing for the panel said:
"We are satisfied that there was a material misdirection, and that analysis of the best interests of the children entirely through the prism of the right to education was too narrow an approach. The error might well be a material one and we will accordingly set aside the decision and remake it in the light of the evidence before the judge and the submissions made to us."
With that Mr Whitwell took me to paragraph 39 of the decision of Judge Hodgkinson in which the judge said:
"[J] has throughout been educated in the United Kingdom. He has undertaken the entirety of his primary school education in this country and he will have commenced his secondary education in this country and he will have commenced his secondary education when he was 11 years old, and he will be 13 years old in early June of this year. At page 48 of the Appellant's bundle is a photocopied letter of Thameside Primary School, dated 12th September 2013, which confirms that [J] attended that school between September 2006 and the end of August 2010. That letter confirms that that school holds the Appellant's details as his mother and that she would have attended parents' evenings at the school. At page 65 of the Appellant's bundle is a letter of West Thurrock Academy, in Greys in Essex, which confirms that [J] is a pupil at that establishment, that he commenced there on 6th September 2010, that his attendance is very good and that his punctuality is excellent. His achievement at school appears to have been at a reasonable level academically, based upon the limited available documents. The letter from West Thurrock Academy confirms that the Appellant is registered with the academy as [J]'s mother and that she regularly meets with the class teacher, head teacher and deputy head."
Mr Whitwell's submission was to the effect that the judge was giving weight to the education which the Second Respondent was enjoying but there was no right to that education and that was something which the judge should have had regard to when making an overall assessment. I was invited further to have regard to paragraph 37 of the decision which in turn made reference to the IDI which was placed before me. That reads at 11.2.4 under the heading "Would it be unreasonable to expect a non-British citizen child to leave the UK?":
"The requirement that a non-British child has lived in the UK for a continuous period of at least the seven years immediately preceding the date of application, recognises that over time children start to put down roots and integrate into life in the UK, to the extent that being required to leave the UK may be unreasonable. The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years."
6. That passage, Mr Whitwell reminded me, is not to be read in isolation of the relevant considerations which appear under that heading. The relevant considerations are clearly not exhaustive because it says that they are likely to include that. What is set out there is whether there would be significant risk to the child's health; whether the child would be leaving the UK with their parent(s) [a factor relied upon by Mr Whitwell in this case in his submissions that there was no reason why the First Respondent ought not to have been considered as a person able to leave the United Kingdom] and the extent of wider family ties in the UK. The IDI goes on to consider those factors whether the child is likely to be able to (re)integrate readily into life in another country, setting out relevant factors for that and any country-specific information included as contained in the relevant country guidance. One then is invited to look to specific factors relating to the particular child.
7. I was then taken to the guidance in EV (Philippines) -v- SSHD [2014] EWCA Civ 874 and in particular to paragraphs 36 and 37 thereof. They read:
"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 wellbeing 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."
8. On that point on the guidance of EV (Philippines) it was Mr Whitwell's submission that there had been no proper consideration of the public interest in this appeal and that particular regard should be given to the fact that the First Respondent was an overstayer.
9. Finally in the line of authorities to which I was taken, Mr Whitwell referred to the guidance in MA (Pakistan) -v- Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 and in particular to paragraphs 29 and 45. At paragraph 29 the Court of Appeal recorded:
"Ms Giovannetti submits that essentially the same approach should be adopted when applying the reasonableness test; in essence it is the usual proportionality test save that the fact that the child has resided in the UK for seven years will be a significant factor weighing in favour of the conclusion that it would not be reasonable to require the child to leave."
10. All of this was in the context of the consideration of Section 117B(6) of the 2002 Act.
11. At paragraph 45 the court, having considered the interplay between Section 117C(5); 117B(6) and 117C(2) said:
"Accordingly, in line with the approach in that case [MM (Uganda)], 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."
12. Mr Whitwell did not take me to paragraph 46 of the same case but it is of some assistance. It reads as follows:
"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 ?'" [being the guidance to which I have referred above]
The Court of Appeal reminded itself of the strong reasons which needed to be demonstrated for refusing leave.
13. The guidance to which I was not taken, but to which I took the parties, and a case in which Mr Whitwell had a passing interest was the case of PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 heard before, it has to be said, MA (Pakistan) but by a Presidential panel in the Upper Tribunal. The guidance was that, "When considering the conjoined Article 8 ECHR claims of multiple family members decision makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise would typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case." There is nothing inconsistent, I find, in the guidance as given in PD with the guidance to which Mr Whitwell referred in MA.
14. It is important to note in this case that the First and the Second Respondents succeeded under the Immigration Rules. It is recognised that the Immigration Rules themselves take into account the public interest. Although Judge Hodgkinson did not make mention of the case of PD he has, I find, in fact done exactly what was suggested by the President in the approach taken to this particular case.
15. Dealing with Mr Whitwell's specific submissions, I note the fact that the judge makes reference to the education history of the Second Respondent but that is done not so much by way of looking to the right of Second Respondent to continue in that education but more in the context of looking to the canvas of the private life of the Second Respondent as a whole; that becomes clear when one looks at the second paragraph of the decision in which the judge goes on to say:
"I have taken account of [J]'s statement of evidence wherein he clearly indicates that he wishes to remain in the United Kingdom and there is unchallenged evidence before me which would indicate that he is an excellent footballer and his aspiration is at some stage to play football for England. He will doubtless have made friends in the United Kingdom and be fully integrated into the way of life in the United Kingdom."
The judge went on to say at paragraph 41 that that evidence, to which I have referred was sufficient alone for him to be satisfied that it would not be reasonable to expect [J] to leave the United Kingdom. I take on board entirely the point taken by Mr Whitwell that the issue of reasonableness has to be seen in the context of the Rules but it is also clear that the judge reminded himself of the correct Rules, considering as he did EX.1 and 276ADE(iv) set out at paragraphs 31 and 32 of the Decision. It was perfectly reasonable in my judgment for the judge to start by an examination of [J]'s position. The judge then looked to the youngest child, recognising that there was an additional factor i.e. the illness of the younger child, which feeds into the question as to the overall reasonableness of the First Respondent being required to leave the United Kingdom even though she succeeded on the basis of EX.1 on the basis that it would not be reasonable to expect [J] to leave the United Kingdom.
16. Standing back and taking an holistic view of the evidence which faced the judge, there were multiple factors which weighed in the balance in favour of the family being allowed to remain in the United Kingdom, which taken together were capable of outweighing the public interest when having regard also to section 117B of the Nationality, Immigration and Asylum Act 2002. The judge listed those factors and in my view even if one had come to this case by an analysis of the wider application of Article 8 ECHR on the basis of the evidence as a whole one was entitled to have arrived at the same view, namely that the findings of the judge were open to her. There was nothing perverse or irrational in the approach taken by the judge. The findings of fact were all open to her and the decision is not only adequately reasoned but more than that. In the circumstances, notwithstanding Mr Whitwell's submissions to me, I find no material error of law in the decision and therefore the decision of the First-tier Tribunal is affirmed.

Notice of Decision

The appeal is to the Upper Tribunal is dismissed.

Signed Date 18th October 2016

Deputy Upper Tribunal Judge Zucker