Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/42689/2014
IA/42684/2014
IA/42677/2014
IA/45398/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Heard on 6th December 2016
On 3rd January 2017
Prepared on 23rd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR MOHAMMAD JANNOO - 1st Appellant
MRS BIBI SHEHNAZ JANNOO - 2nd Appellant
MS UMMA JANNOO - 3rd Appellant
MS BIBI MUMYAHINA JANNOO - 4th Appellant
(Anonymity orders not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr W Rees of Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

REASONS FOR FINDING AN ERROR OF LAW

The Appellants
1. The 4 Appellants are all citizens of Mauritius. The first Appellant who I shall call Mr Jannoo was born on 2 December 1965. He is the husband of the 2nd Appellant who I shall call Mrs Jannoo and she was born on 22 September 1973. The 3rd and 4th Appellants are the couple's children. The 3rd Appellant who I shall call Umme was born on 15 December 1996 and is now 20 years old. The 4th Appellant who I shall call Bibi was born on 4th of May 1992 and is thus Umme's older sister. On 30th May 2012 the Appellants applied for leave to remain in the United Kingdom on the basis of their family and private life in this country. The Respondent ultimately refused their applications by decisions dated 10th October 2014 in the case of Mr and Mrs Jannoo and Umme and 24 October 2014 in the case of Bibi.
2. There followed somewhat protracted appeal proceedings in which the appeals were first allowed on the basis that the Respondent's decisions were not in accordance with the law such that they remained outstanding before the Respondent to take. When the Respondent retook those decisions and again refused the applications the subsequent appeals were allowed at first instance but overturned in the Upper Tribunal and remitted back to the First-tier Tribunal for rehearing. This resulted in the appeal coming before Judge of the First-tier Tribunal O'Garro sitting at Hatton Cross on 24th of June 2016. She dismissed the appeals of the 1st, 2nd and 4th Appellants but allowed Umme's appeal under the Immigration Rules. This decision generated cross appeals. The Respondent has appealed the decision to allow Umme's appeal and the 1st, 2nd and 4th Appellants have appealed the decision to dismiss their respective appeals. Permission to appeal was granted to all parties by Judge of the First-tier Tribunal Frankish on 11 November 2016. I have heard submissions on the cross appeals on the issue of error of law and give my decision thereon in this determination. For the sake of convenience, I have continued to refer to the parties as they were designated at first instance.
3. Mr Jannoo entered the United Kingdom on 19th June 2006 as a student. He was granted an extension of stay in that category until 31st of March 2007. On 1st December 2006 he was joined by the other 3 members of his family who had leave as visitors valid until 1st of June 2007. They were granted extensions in due course in line with Mr Jannoo until 31st of March 2008. There were further extensions granting leave until 12 July 2014. However, on 7th of July 2011 Mr Jannoo's leave as a student was curtailed due to his sponsor's licence being revoked. His leave was then set to expire on 2nd of June 2012. The other members of his family had their leave curtailed in line with his. Before the deadline of 2 June 2012 expired the Appellants applied on 30 May 2012 for variation of their leave to remain. As at the date of application Umme was 16 years and 5 months old and had been in the United Kingdom for 5 years and 7 months. Bibi was 20 years old and had been in the United Kingdom for the same amount of time as her younger sister Umme.
4. The Respondent made decisions to refuse the applications on 12th of July 2013 by which time new Immigration Rules had come into force (in July 2012) which meant that the Respondent had to decide the Appellant's applications in line with the Immigration Rules in force at the date of decision. Unfortunately, the Tribunal first hearing these appeals wrongly decided on 18 July 2014 that as the applications were made before July 2012 the decisions should not have been made under the new rules. The effect of the First-tier's decision at that time was that the decisions were still before the Respondent to take. The Respondent looked at the matters again in October 2014 and made fresh decisions which are the subject of these proceedings.
5. The appeals against the October 2014 decisions came before Judge Plumptre sitting at Hatton Cross on 13 May 2015 who allowed the Appellant's appeals outside the Immigration Rules but under the provisions of the Nationality Immigration and Asylum Act 22002 finding that Umme was a qualifying child because she had been living in the United Kingdom for 7 years by the date of refusal and it was not reasonable to expect her to return to Mauritius. As Umme's parents Mr and Mrs Jannoo had a genuine and subsisting parental relationship with Umme public interest considerations did not require them to leave the United Kingdom either. This decision was overturned by Deputy Upper Tribunal Judge Monson sitting at Field House on 12th of January 2016. He noted at paragraph 31 of his decision finding an error of law that paragraph 276 ADE (1) (iv) requires a qualifying child to have accrued 7 years residence in the United Kingdom at the date of application which Umme had not accrued. That meant that the appeal had to be looked at outside the Immigration Rules in circumstances where what was in contemplation was the removal of the entire family to Mauritius. It was not a question of whether it was reasonable for Umme to go on her own to Mauritius leaving behind her family. As a result the balancing exercise had not been properly carried out and the matter was remitted back to the First-tier and thus came before Judge O'Garro.
The Decision At First Instance
6. At paragraph 48 of her determination Judge O'Garro indicated she would consider the position of each Appellant individually. Mr Jannoo had no close family members in Mauritius save for 2 sisters and he had lived in United Kingdom for 10 years by that time. He would still be familiar with Mauritian culture and society and could quite easily assimilate back into that society. Mrs Jannoo had elderly parents and 2 siblings still living in Mauritius and there would be no significant obstacles to her reintegration there. She then turned to the case of Umme writing at paragraph 53 "at the date of the reconsideration of [Umme's] application on 18th of July 2014 which I find has to be viewed as a fresh application, the Appellant would have been in the United Kingdom more than 7 years which means I have to determine if it is reasonable for her to leave the United Kingdom at this stage of her life. She would have been 17 years old and at that age she would have been preparing for her GCE examinations".
7. Judge O'Garro gave no authority for her decision that Umme's appeal had to be looked at under the Rules as at 18th of July 2014 (when her appeal was allowed to a limited extent) as opposed to May 2012 when the application itself was made. This was unfortunate given the reference in Deputy Upper Tribunal Judge Monson's decision to the correct date for the assessment under the Immigration Rules as being the date of application. One further point which needs to be made is that Bibi meanwhile had made an application on form FLR (FP) in July 2014 applying for further leave to remain on the basis of 10 years lawful residence and/or dependency upon her parents, although she was 22 at the time and if she had not made an application with the other members of her family in May 2012 she would have had no leave since then.
8. Judge O'Garro proceeded with her consideration of Umme's appeal by finding that she was aged 17 years at what Judge O'Garro took to be the relevant date and very well settled in the educational system in United Kingdom. She would have been in the middle of preparing for her GCE examinations and it would not have been reasonable at that time or in her best interests for her to have left the United Kingdom to return to Mauritius where the education system would be alien to her and where her skill in the language would have to be learned again. It was thus not reasonable for her to leave the United Kingdom.
9. Turning to Bibi's appeal, at paragraph 57 the Judge found Bibi would fall into the same position as her parents, Mr and Mrs Jannoo. She could not show significant obstacles to reintegration into Mauritius. She had left there at age 14 and would have by then understood the language and culture. Thus Mr and Mrs Jannoo and Bibi could not succeed under either Appendix FM or paragraph 276 ADE. The Judge proceeded to consider their circumstances under Article 8 (although there appears to be a typographical error in paragraph 58 referring to 2 Appellants instead of 3). For this exercise the Judge had to look at matters as at the date of hearing and here she decided that Bibi was now an adult and had always lived with her parents. The other Appellants could not rely on the fact that Umme was once a qualifying child. Throughout their time in the United Kingdom the Appellants' leave had been precarious and little weight could be placed on whatever private life they had acquired. In relation to the potential claim for 10 years lawful residence Judge O'Garro stated at paragraph 73 that although the Appellant had been in the United Kingdom for at least that period it was for the Respondent and not the First-tier Tribunal to make an assessment as to whether the Appellant qualified for leave to remain on that basis. Judge O'Garro was only referring there to Mr Jannoo but Mrs Jannoo would also have had 10 years residence by reason of having 3C leave following the making of her application in May 2012.
10. The result of Judge O'Garro's decision was that Umme would be able to stay in this country while the other 3 Appellants would have to return. The Judge appreciated that Umme would want her parents and Bibi to remain in the United Kingdom as they provided her with both financial and emotional support but Umme was now an adult and would be able to live an independent life. Once Umme was granted leave to remain in the United Kingdom she would be able to work here or go on to higher education and could reside with one of the close family members she already had here such as an aunt. By contrast the other Appellants had no right to be in United Kingdom and there was no evidence why they could not return to Mauritius. They were fit and healthy and would have no difficulty in finding employment or adjusting to life in their country of origin. Bibi was working as a nursery nurse and would be able to find employment as well. It would be a wrench but the Appellants had known that their immigration status was precarious and that someday they would have to leave the United Kingdom to return to Mauritius.
The Onward Appeals
11. As I have indicated both sides appealed the Judge's decision. The first in time to appeal were the 1st, 2nd and 4th Appellants who argued that the breakup of the family unit by returning them to Mauritius while leaving Umme in the United Kingdom would be unduly harsh. The ties which bound the family members could not be replicated by remote contact between Umme and her parents. Umme wished to attend university and was in need of her parents to provide her with further support during her studies. The grounds contended that the relevant date for assessing the claims should be the date when the appeal proceedings started at which point Umme was still under the age of 18. Referring to Bibi the grounds argued that she was fully integrated into the United Kingdom and would be an asset to the country working as a nursery nurse.
12. Four days later the Respondent appealed against the decision to allow Umme's appeal arguing that the Judge had allowed the appeal on the basis she was pursuing her education in United Kingdom but one had to consider the Court of Appeal decision in EV (Philippines) [2014] EWCA Civ 874. The children's best interests were to be with their parents in a family unit. This would have continued in Mauritius. Following another decision of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 the court should not simply focus on the child but should have regard to the wider public interest considerations.
13. Both applications for permission came before Judge of the First-tier Tribunal Frankish on 11th of November 2016. He granted permission to all parties on two bases. The first was the Appellant's argument that Umme could not be expected to live with other family members whilst the 3 Appellants left. The second was that arguably there had been insufficient consideration of the reasonableness test contained in paragraph 276 ADE as it could be reasonable to expect Umme to pursue her higher education in Mauritius. Judge Frankish concluded his remarks with: "for justice to be done I allow the applicant's application in order that there may be consideration of the family as a whole in accordance with EV".
14. The Respondent replied to the grant of permission saying it was not entirely clear why the application of the other 3 Appellants against the decision to dismiss their appeals had been granted. There could be no realistic prospect of those Appellant's succeeding under the ratio in EV as there were no British citizens involved and all of the Appellants were now adults.
The Hearing Before Me
15. For the Respondent, the Presenting Officer, who had settled the grounds of appeal and the rule 24 response, relied on both documents. It was not clear why the Judge had allowed Umme's appeal as Umme could always make an application to come back. For Article 8 purposes this was an appeal of adults. One had to look at the immigration history of the family see MA Pakistan.
16. For the Appellants' counsel argued that the Judge was correct in relation to Umme's appeal but wrong in law in relation to the others. The Judge had not properly considered the factors in EV Philippines which see it as a necessity to keep the family together. The Judge had not applied the test in section 117 B (6) of the 2002 Act that if it was not reasonable to expect Umme to relocate then the parents should not be expected to either. In MA Pakistan there had been a discussion on whether one should focus on the child alone when considering section 117 B (6). Even if one did look at the immigration history of the parents one still had to look at the immigration directorate instructions 11. 2. 4. There needed to be strong reasons to refuse leave where there was a qualifying child.
17. It was helpful, counsel argued, to go through the EV Philippines criteria. Umme was now 19 and had been here for over 10 years at least 9 of which was in education. At the moment she was in limbo. She could not go to university because she had no visa. She had never been back to Mauritius since arriving here nor had the others. She could not speak French and only knew an odd word or two of Creole. There was no readily renewable connection with Mauritius, there would be difficulties in adapting. Her parents had not behaved deceitfully they had had 3C leave. It was wrong to say Umme could live with other members of the family and find work. If she could obtain status she could go to university. Bibi was a child when she arrived. This was a family that had more than normal emotional ties together. The Judge was right to say that Umme should be treated as if she was under 18.
18. In reply the Presenting Officer argued that EV could not benefit the Appellant as Umme was 19 years old. It was reasonable to expect a child to go with his or her parents. Section 117 B (6) was not a stand-alone factor. In response counsel argued that the determination was unsafe. It had not considered EV properly. At the conclusion of submissions both parties indicated that if an error of law was found the case should not be remitted back to the First-tier for rehearing as the case had now been going on for a very long time and the parties needed finality. If there was to be a rehearing further evidence would be put in particularly a statement from Umme. I indicated that if I found a material error of law I would give directions for rehearing. If there were no material errors of law the decision at first instance would stand.
Findings On The Issue Of Error Of Law
19. When considering these appeals the first matter the Judge had to deal with was whether any or all of the Appellants could succeed under the Immigration Rules. The Judge's decision was that the 3rd Appellant Umme could succeed under paragraph 276 ADE (iv). This provides that a child applicant for leave to remain made on the grounds of private life must at the date of application have lived continuously in the United Kingdom for at least 7 years and it would not be reasonable to expect the applicant to leave the United Kingdom. The only applicant to whom this paragraph could have applied was Umme. Judge O'Garro decided that it did apply to Umme because she took the date of application as being 18 July 2014 when the initial decisions of the Respondent were found to be not in accordance with the law and so outstanding before the Respondent to take. As I have indicated above there was no authority for that proposition and in my view it was an error of law for Judge O O'Garro to proceed on that basis. The correct basis was as outlined by Deputy Upper Tribunal Judge Monson that Umme's private life application under the rules had to be looked at, at the date of application namely May 2012. As will be seen from the calculations above (see paragraph 3) Umme had not been in the United Kingdom for 7 years at that date although she was under the age of 18. Bibi could not benefit from that provision because she was over the age of 18 at the date of application.
20. The effect of this error at first instance was to skew the assessment of the reasonableness of expecting Umme to leave the United Kingdom at the date of application. The test under the Rules did not arise. It was therefore a material error of law to find that Umme could satisfy the Immigration Rules. What was left was a consideration of the other Appellants' applications outside the Immigration Rules but also a consideration of Umme's case outside the Immigration Rules. It is understandable that Judge O O'Garro did not proceed to consider Umme's case outside the Immigration Rules because she had found that Umme met the rules. Unfortunately, because that was incorrect it was then an error for the Judge not to consider Umme's case outside the rules. It might be argued that in considering the reasonableness of expecting Umme to return to Mauritius the Judge had satisfied the test in section 117B (6). It is correct that the statutory test in the 2002 Act replicates the test in the Immigration Rules save for one very crucial difference. That crucial difference is that under the rules one has to satisfy the reasonableness test at the date of application whereas under the section one has to satisfy the reasonableness test at the date of hearing.
21. This caused a problem for Umme because of the length of time which these proceedings have taken during the appeal stages. By the time the matter came before Judge O'Garro Umme was no longer a child and the test of reasonableness under the section no longer applied. Similarly, EV had become of limited relevance to the case. Instead all 4 Appellants had to argue their appeals outside the Immigration Rules both as to the family life they had together and their respective private lives. The 3 Appellants whose appeals were dismissed could not pray in aid that they had in the case of Mr and Mrs Jannoo a genuine and parental relationship with Umme since she was no longer a qualifying child. In effect the four Appellants would be returned to Mauritius as adults who had spent 10 years in this country but who for the reasons given by Judge O'Garro would be able to pick up the threads of their lives again in Mauritius. I do not consider therefore that Judge O O'Garro made any material error of law in relation to her dismissal of the 1st, 2nd and 4th Appellants' appeals.
22. She clearly did make an error of law in allowing Umme's appeal under the Immigration Rules when they did not apply to Umme. What she did not do was consider whether Umme could nevertheless succeed outside the Immigration Rules given the particular differences in her case to those of the other Appellants. Those differences were that Umme's connection with Mauritius was much weaker than the other 3 particularly linguistically and that Umme was at a difficult stage in her education. I appreciate the argument that the Respondent makes that there is no duty on the United Kingdom "to educate the world" as the Court of Appeal stated in EV but one has to look at these matters on a case-by-case basis. Judge O'Garro had the benefit of hearing the parties and receiving the evidence when making an assessment of the effect on Umme of the disruption to her education by requiring her to return to Mauritius in 2016. The test to have applied was whether there were very compelling circumstances such that Umme's appeal should be allowed outside the Immigration Rules. It is not clear from the determination whether Judge O'Garro would have allowed the appeal on that basis if she had gone on to consider Umme's appeal outside the Immigration Rules. Had she done so and adequately reasoned it the error in allowing the appeal under the rules would not have applied but it does not appear that Judge O O'Garro looked at the matter through the prism of the Immigration Rules since she did not look at Umme's appeal outside the rules at all.
23. I do not consider it appropriate at this stage to make a fresh decision allowing or dismissing Umme's appeal having found an error of law in the decision to allow it. The reason why I say that is because I consider Umme should be given a further opportunity to lodge evidence as to her circumstances to see whether there are compelling circumstances such that her appeal should be allowed outside the rules. I appreciate that her argument in relation to family life is bound up with the arguments put forward by the other 3 Appellants. That is that they are a close knit family unit who have been living together in this country for 10 years and who wish to continue to support Umme in her further studies. Even if I accept that Judge O'Garro was wrong to find that Umme could stay with another relative while she continued her studies I do not consider that Judge O'Garro was wrong in law in the conclusion she reached at paragraph 74 of her determination. It is in my view worth quoting:
"I appreciate [Umme] will want her parents and siblings to remain in the United Kingdom with her as they provide her with both financial and emotional support but she is now an adult and will soon be able to live an independent life especially if she is thinking of higher education and university which she is likely to receive a student loan to assist her financially while she studies. Once [Umme] is granted leave to remain in the United Kingdom she will be able to work or attend further/higher education, if that is her wish".
24. If one looks at the situation as at 30 June 2016 the date of hearing before Judge O'Garro the only basis on which the three other Appellants could have won their appeal was on the basis that they were needed to remain in this country because of the dependency upon them of Umme but by then Umme was not a child she was at an age when it is by no means unusual for young people to leave home to study. Umme was familiar with this country having lived here for 10 years and studying away from the family home would not be a compelling circumstance such that the other Appellants appeals should be allowed. Whether therefore Umme eventually succeeds in her appeal or not (as I have indicated that may depend on further evidence and submissions) the three Appellants cannot succeed in their appeals since Umme is not a child and for the reasons given by Judge O O'Garro. I therefore set aside the first instance decision in relation to Umme, the 3rd Appellant's appeal and direct that the matter be reheard on the first available date after 42 days. I give permission to her to file and serve any further evidence upon which she proposes to rely by 4 pm on 27 January 2017. I dismiss the onward appeals of the 1st, 2nd and 4th Appellants against the decisions of the First-tier Tribunal. I make no anonymity orders as there is no public policy reason for so doing.

Notice of Decision
The decision of the First-tier Tribunal in relation to the appeal of the 3rd Appellant contained a material error of law and I have set it aside. I direct that that appeal be reheard on the first available date after 42 days.
The decisions of the First-tier Tribunal in relation to the appeals of the 1st, 2nd and 4th Appellants did not contain material errors of law and I uphold the decisions to dismiss the appeals of those Appellants.

Signed this 23rd day of December 2016

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Judge Woodcraft
Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD
No fee awards were made in this case at first instance which I consider to be the correct decision. I therefore make no fee award either.

Signed this 23rd day of December 2016

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Judge Woodcraft
Deputy Upper Tribunal Judge