Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/44063/2014
IA/44064/2014
IA/44067/2014
IA/44069/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 22 November 2016
On 5 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

a m s
s n
m r s
r a s
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Hasan of Kalam Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order as the two of the appellants are children. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellants. This direction applies to both the appellants and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Background
2. A1 and A2 are nationals of Bangladesh. They are a married couple and A3 and A4 are their children born respectively on 8 May 2005 and 9 June 2008. A3 and A4 are also nationals of Bangladesh. However, in addition, A3 became a British citizen by registration on 28 September 2015 subsequent to the decisions under appeal.
3. A1 and A2 initially came to the UK as visitors. A1 entered with entry clearance valid between 28 March 2002 and 28 September 2002. His leave was subsequently extended until 1 September 2005. Thereafter, A1 overstayed.
4. A2 came to the UK with leave as a visitor valid from 9 November 2004 to 9 May 2005. Her leave was extended to 1 September 2005. Thereafter, she overstayed.
5. A3 was born in the UK on 8 May 2005. A4 was born in the UK on 9 June 2008. It would appear that neither A3 nor A4 have ever had leave to remain.
6. The appellants have applied for further leave to remain on a number of occasions. On 28 October 2006, they applied for leave under Art 8 but that was refused on 8 December 2008. A further application was made on 26 January 2011 but, again, that was refused on 22 February 2011. Further submissions were made on 20 June 2011 under Art 8 but were rejected on 27 January 2012.
7. Finally, on 20 September 2012 A1 applied for leave to remain under Art 8 together with his wife (A2) and his children (A3 and A4) as his dependents. Leave was refused on 24 January 2014. That decision was subsequently reconsidered but leave was again refused to the appellants on 16 October 2014 and decisions were made to remove the appellants by way of directions to Bangladesh on that date.
8. The basis of the refusals was that the appellant could not succeed under the Immigration Rules: under the partner route in Appendix FM; under the parent route in Appendix FM; under the child route under Appendix FM and under para 276ADE based upon their private life in the UK. Further, the Secretary of State concluded that there were no exceptional circumstances to justify the grant of leave outside the Rules and that it was in the children's best interests and reasonable for them to return to Bangladesh as part of the family unit.
The Appeal to the First-tier Tribunal
9. The four appellants appealed to the First-tier Tribunal. The appeal was heard by Judge Page on 5 January 2016. By that time A3 had become a British citizen and so her appeal was withdrawn. Judge Page was, therefore, only concerned with the decisions in respect of A1, A2 and A4. The position of A3, as a British citizen was, nevertheless, a central feature of the claims by A1, A2 and A4.
10. Before the judge, the appellants relied upon Art 8 outside the Rules. It was not suggested, correctly, that any of the appellants could succeed under Appendix FM. Likewise, none of the appellants could succeed under para 276ADE. A1 and A2 had not been in the UK for at least twenty years (para 276ADE(1)(iii)). Further, given that A1 and A2 had spent 30 and 29 years respectively living in Bangladesh, it was not advanced as an argument that there were "very significant obstacles" to their integration in Bangladesh. Further, A4, although under the age of 18, was at the date of application only 4 years old and therefore could not establish that she had been resident in the UK for at least seven years at that date as required by para 276ADE(1)(iv).
11. Before Judge Page, the appellants argued that their removal to Bangladesh was disproportionate. The appellants relied on the fact that both A3 and A4 were "qualifying" children under s.117B(6) because A3 was a British citizen and, at the date of hearing which was the relevant date, A3 had been in the UK for over seven years. It was argued that it was not in the best interests of either A3 or A4 to leave the UK and it would be unreasonable for them to do so. Particular reliance was placed on the fact that A3 had the right to live in the UK as a British citizen. A3 was, at the date of hearing, 10 years of age. It was argued that as it was unreasonable to expect A3 and A4 to leave the UK, then it was disproportionate to remove not only A3 and A4 but also A1 and A2 their parents.
12. At paras 28-46 of his determination, Judge Page made a number of findings which I can summarise as follows:
(1) A3 is a 10-year-old child who is a British citizen. If A1, A2 and A4 were removed to Bangladesh there are no relatives in the UK with whom A3 could live and, as a result, she could not remain in the UK and would, as a practical matter, go to Bangladesh with her parents.
(2) A4, who had lived in the UK for seven years (and was aged 7) would also, as a practical matter, have to go to Bangladesh if her parents A1 and A2 were removed.
(3) A1, A2, A3 and A4 were living together as a family unit in the UK and had established close ties in the UK during their residence. They consider the UK to be their home.
(4) A3 and A4 are attending and doing well at school and have adapted to life in the UK. They are well-settled in school with many friends. They speak English at home and with one another and have become accustomed to the British way of life. They have never travelled outside the UK where they were born.
(5) It would be "harsh" for them to be removed from the UK or, in the case of A3, to go to Bangladesh with her parents and younger sister. However, they could settle in Bangladesh with the assistance of their parents.
(6) A1 and A2 have not severed all their ties with Bangladesh notwithstanding they have not returned there since coming to the UK in 2002 and 2004 respectively.
(7) It would not be contrary to the best interests of A3 and A4 if they went to Bangladesh as part of a family unit where they could continue their education.
(8) It would be reasonable for the appellants, including A3 and A4 to return to Bangladesh. A1 and A2 have the option of making arrangements for A3 to remain in or return to the UK to continue her education here as a British citizen.
(9) A1 and A2 came to the UK and remained here unlawfully. They choose to have a family in the UK in those circumstances and A3 was "primarily" registered as a British citizen shortly before the appeal as a strategy for the appellants as a family to remain in the UK.
(10) Any decision to "split the family" is not that of the Secretary of State but would be a decision of A1 and A2.
(11) There were no compelling circumstances and it was proportionate to remove A1, A2 and A4.
13. As a consequence, Judge Page dismissed the appeals of A1, A2 and A4.
The Appeal to the Upper Tribunal
14. A1, A2 and A4 sought permission to appeal to the Upper Tribunal. In particular, those grounds argue that Judge Page failed properly to deal with the issues of the children's best interests and whether it would be reasonable for them to leave the UK, in particular in the light of the fact that A3 is a British citizen.
15. On 27 June 2016 the First-tier Tribunal (Judge Ford) granted the appellants permission to appeal.
16. On 6 July 2016 the Secretary of State filed a rule 24 response seeking to uphold the judge's decision.
17. Thus, the appeals came before me.
Discussion
1. Error of Law
18. Mr Hasan, who represented the appellants, relied upon the grounds of appeal. He sought to renew the application for permission in respect of ground 2 which criticised the judge for not positively taking into account under s.117B(2) of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act 2002") that the appellants were able to speak English and were financially independent. However, as I pointed out to Mr Hasan, the appellants sought to renew their application on this ground, refused by Judge Ford (in para 3 of her decision) to the Upper Tribunal. In any event, the ground is wholly unarguable in the light of the Court of Appeal's decision in Rhuppiah v SSHD [2016] EWCA Civ 803 at [58]-[62] that proficiency in English or financial independence was a "neutral factor". The purpose of s.117B(2) and (3) is to recognise that an inability to speak English or a lack of financial independency is a negative factor in considering the public interest. Consequently, ground 2 is unarguable as identifying a material error in the judge's decision.
19. Mr Hasan did not specifically refer to ground 4 which criticised the judge for dismissing A3's appeal rather than treating it as abandoned or withdrawn on the basis that she was, by the time of the hearing, a British citizen. Mr Hasan was, in my judgment, correct not to pursue this ground since Judge Page specifically concluded that A3's appeal was withdrawn and that he was only concerned with the appeals of A1, A2 and A4 (see para 9 of his determination).
20. Mr Hasan focused, therefore, upon the judge's approach to A3 and A4's best interests and his finding that it was "reasonable" for them to go to Bangladesh. Mr Hasan relied, essentially, on three points. First, he submitted that the judge had misdirected himself in assessing whether it was reasonable for them to leave the UK by applying a test of whether it was "harsh" for them to do so. Secondly, he relied upon the decision of the Court of Appeal (decided since the First-tier Tribunal's decision in this appeal) in R (MA) (Pakistan) and others v UTIAC and others [2016] EWCA Civ 705. In particular, he relied upon what was said by Elias LJ that, in the case of a child who had been resident in the UK for at least seven years, "powerful" or "strong" reasons were required to establish that it was not in a child's best interest to remain in the UK with his parents as part of a family unit. Thirdly, Mr Hasan placed reliance upon the Home Office guidance, "Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10 Year Roots" (August 2015) at para 11.2.3 in which it is stated that it would be unreasonable to expect a British citizen child to leave the EU with a parent or primary carer if to do so was to require them to return to a country outside the EU. Mr Hasan placed reliance upon the statement that:
"In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with a child, provided there is satisfactory evidence of a genuine and subsisting parental relationship."
21. Mr Hasan submitted that he had relied upon this policy before Judge Page and, in concluding that it was reasonable to expect A3 to return to Bangladesh, he had failed to consider that guidance.
22. On behalf of the Secretary of State, Mr Richards accepted Mr Hasan's assurance that Judge Page had been referred to the Home Office guidance. He accepted that Judge Page's decision must be set aside on the basis of a material error of law and that the decision must be remade.
23. In the light of this, I agree that Judge Page's decision cannot stand as he failed to take into account the Home Office's guidance. That was highly material to the judge's decision in respect of s.117B(6) when applied to A3. A3 is a British citizen. On the judge's own findings, she will be required to leave the UK if her parents (who are her primary carers) are removed to Bangladesh.
24. Further, in assessing the best interests of A3 and A4 (who has been in the UK for seven years, the judge failed to give sufficient weight to those circumstances and, as the Court of Appeal stated in MA (Pakistan) at [46] the "very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit".
25. For these reasons, therefore, the decision of Judge Page is set aside and as both representatives acknowledged, the decision must be remade. Mr Hasan invited me to remake the decision rather than remit the appeals to the First-tier Tribunal.
2. Remaking the Decision
26. Although Mr Hasan relied (in relation to A4) on para 276ADE(1)(iv), in truth none of the appellants can succeed under any of the Immigration Rules. Although A3 has been in the UK for "at least seven years" by the date of the First-tier Tribunal's hearing, para 276ADE(1) required that period to be satisfied "at the date of application". It was not. It is not suggested that any of the routes in Appendix FM or para 276ADE are otherwise met. Of course, under s.117B(6), the seven year period is not tied to the "date of application" and A4, like A3, is a "qualifying child" for the purposes of that provision by virtue of s.117D(1).
27. Mr Hasan submitted that it was not in the best interests of A3 or A4 to go to Bangladesh and it was not reasonable to expect them to do so applying s.117B(6). He invited me to allow the appeal under Art 8 on the basis that the removal of all the appellants, in those circumstances, was not proportionate.
28. On behalf of the Secretary of State, Mr Richards indicated that he wished to make no submissions in respect of the substance of the appeal.
29. The appellants claim relies upon Art 8 outside the Immigration Rules. In applying Art 8, I apply the 6-stage test in R (Razgar) v SSHD [2004] UKHL 27.
30. First, I accept that the appellants' removal to Bangladesh will interfere with their private and family life in the UK sufficiently seriously to engage Art 8.1. Judge Page made clear findings that the appellants, in particular A4 (and for these purposes I will include A3) are embedded in the UK which they consider as their home and the children are settled and fully engaged in school and with friends. Of course, if they all return to Bangladesh together, there will be no infringement with their right to respect for their family life but A3 has the right to remain in the UK.
31. Secondly, the decisions are in accordance with the law as the appellants cannot succeed under any of the Immigration Rules.
32. Thirdly, the appellants' removal is for a legitimate aim, namely the maintenance of effective immigration control (see, s.117B(1) of the NIA Act 2002).
33. The crucial issue is whether the appellants' removal is justified as being a proportionate interference with their Art 8 rights and, for this purpose, I take account of the rights of A3 as a member of the family unit (see, Beoku-Betts v SSHD [2008] UKHL 39). That requires a balancing of the individual's interests and rights against the public interest in effective immigration control (see, Razgar at [20]).
34. In determining proportionality, the best interests of A3 and A4 are a primary, though not determinative, factor (see ZH (Tanzania) v SSHD [2011] UKSC 4 and Zoumbas v SSHD [2013] UKSC 74). A child's best interest may be outweighed by the cumulative effect of other considerations (see, for example Zoumbas at [10(3)].
35. In determining proportionality under Art 8.2, I must "have regard" to the considerations listed in s.117B of the NIA Act 2002 (see, s.117A(2)).
36. Section 117B provides as follows:
"117B. Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English -
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons -
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to -
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) 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."
37. Dealing first with the best interests of A3 and A4, both have lived in the UK for their entire lives: they are now aged 10 years and 7 years respectively.
38. Judge Page made a number of very positive findings concerning their integration into the UK. At para 43 he stated that:
"43. I accept that the two girls, [A3] and [A4], are well-settled in school with many friends here. They speak English at home with one another and have become accustomed to the British way of life. I accept that they have never travelled outside the United Kingdom. They were born here and do not know any other country."
39. Judge Page went on to state that it would be "harsh" for them to be removed from the UK but that they could settle in Bangladesh with the assistance of their parents. Previously he referred to the fact that Bangladesh had an education system to which they would have access and that A3 (being a British citizen) could if her parents wished come back to the UK to continue her education.
40. Although Judge Page concluded that it would be in A3 and A4's best interests to return to Bangladesh with their parents, I do not agree. A3 is a British citizen and has lived in the UK for ten years. She knows no other country. Likewise, although not a British citizen, A4 has lived in the UK for seven years and knows no other country. Judge Page acknowledged that they had developed strong ties and therefore private life in the UK. In MA (Pakistan), Elias LJ recognised, in the context of the seven year residence requirement, the underlying basis of that at [46]:
"After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be more on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment."
41. The point is all the more strong in the case of A3 who is a British citizen. Judge Page's findings, which I gratefully adopt, in relation to the integration of both A3 and A4 in the UK lead me to conclude that if they were required to leave the UK that would be "highly disruptive" to them despite the availability of education in Bangladesh. And, of course, A3 is a British citizen and, as such, is entitled to the benefits that flow from that by living and growing up in the UK. In ZH (Tanzania), Lady Hale at [31]-[32] identified the importance of integration and citizenship in reaching a determination on a child's "best interests". She said this:
"31. ? they are British children; they are British, not just through 'accident' of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate into their own community ?. but it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well.
32. Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantage of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults. ?"
42. Although the facts in these appeals do not precisely match each and every factor identified by Lady Hale, the substance of her comments are applicable.
43. In my judgment, it is in the best interests of A3 and A4 to remain in the UK and to do so with their parents, A1 and A2.
44. However, that is only a primary consideration. It is not determinative of the issue of "reasonableness" under s.117B(6) (see MA (Pakistan) at [47]). The issue of "reasonableness" entails a balancing exercise taking into account the public interest (see MA (Pakistan) at [45]).
45. I accept that the appellant's removal is in the public interest for the maintenance of effective immigration control (s.117B(1)).
46. Although it is not disputed that the appellants speak English and are financially independent, that is a neutral factor and does not dilute the otherwise existing public interest (Rhuppiah interpreting s.117B(2) and (3)).
47. I accept that the private life of all appellants was established either at a time when their immigration status was precarious or when they were in the UK unlawfully and therefore, in principle, is entitled to "little weight" (see s.117B(4) and (5)). That is also substantially the case for their family life as a family unit. However, I am entitled to bear in mind in respect of A3 and A4 that, despite their presence in the UK being unlawful, this not their responsibility given their ages. That is a feature which, in my judgment, entitles me to give due consideration to their private life consistently with s.117B(4) (see Rhuppiah at [53] and [54]).
48. Mr Hasan's submission focused on s.117B(6). I have already set out both Judge Page's findings in respect of the integration of A3 and A4 in the UK and my finding that it would be in the best interests of A3 and A4 to remain in the UK and with their parents. I accept, on the basis of MA (Pakistan) that is not conclusive of the issue of whether it is reasonable for them to leave the UK. However, as the Court of Appeal recognised in MA (Pakistan), a child who has been in the UK for seven years (and I would add, or is a British citizen as in the case of A3) is likely to have established a life in the UK such that there must be "strong" or "powerful" reasons why leave should not be granted. In other words, that it would be unreasonable to expect them to leave the UK.
49. I bear in mind that both A1 and A2 have been unlawfully in the UK since 1 September 2005 having previously been here as visitors. They have, albeit unsuccessfully, sought to regularise their position since October 2006. Although A1 has a conviction for contravening the General Food Act, that was not relied upon by the respondent before Judge Page given A1's "conditional discharge" (see para 13 of Judge Page's determination) and it was not relied upon before me.
50. In the case of A3, not only has she been in the UK for more than seven years (ten years in fact), she is also now a British citizen. The Home Office guidance, to which I was referred by Mr Hasan, at para 11.2.3 is, in that regard, highly relevant. That guidance under the heading "Would it be unreasonable to expect a British citizen child to leave the UK?" refers to the ECJ's judgment in Zambrano (C-34-09 [2011] ECR 1-1177). The guidance is in the following terms:
"Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice judgment in Zambrano. ?.
Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship."
51. The guidance then goes on to consider countervailing circumstances as follows:
"The circumstances envisaged could cover amongst others:
criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules."
52. As these passages in the guidance identify, it is accepted by the Secretary of State that it would be unreasonable to expect a British citizen child to leave the UK if the removal of his parents/primary carer was to require him to return with them to a country outside the EU. In those circumstances, the guidance recognises that it would be usually appropriate to grant the parent or primary carer leave to remain. That "usually" position might be countered on the basis of criminality or "a very poor immigration history". As I have already indicated, the respondent does not seek to rely on any criminality of A1 in this case and although A1 and A3 have overstayed since 2005 I do not consider that that falls within the rubric of "very poor immigration history" the only example of which is given in the guidance as "repeatedly and deliberately" breaching the Immigration Rules. Here, as I have already indicated, since 2006, A1 and A2 have sought to regularise their position.
53. The guidance goes on to recognise, in effect, that a primary carer in the circumstances of A1 and A2 has an EU right to remain in the UK based upon the Zambrano decision. That is reflected in our domestic law in the derivative right of residence set out in Reg 15A(4A) of the Immigration (EEA) Regulations 2006 (SI 2006/1003 as amended). In this case, A1 and A2 have not made an application on the basis of any derivative right as A3's primary carers. It is difficult, however, on the basis of Judge Page's findings to conclude that, because of A3's circumstances, A1 and A2 do not fall within the rubric in para 11.2.3 as parents who would be usually granted leave to remain and there are no sufficient countervailing circumstances to deny that expectation. Both the guidance and the Zambrano line of argument, are in my judgment highly relevant to the issue of whether it would be reasonable to expect A3 to leave the UK and the application of s.117B(6).
54. In my judgment, it would not be reasonable to expect A3 to do so.
55. Further, having regard to all the circumstances, looking at the position of A4 there are no "strong" or "powerful" reasons to depart from what Elias LJ in MA (Pakistan) described as the "starting point that leave should be granted".
56. I am satisfied that it would not be reasonable to expect A3 or A4 to leave the UK and, therefore, s.117B(6) applies. That may, in itself, mean that the public interest does not require A1 or A2's removal: there is nothing left of the public interest to justify removal (see MA(Pakistan) at [17] and Rhuppiah at [51])). As I have already indicated, Mr Richards did not seek to make any representations on the substance or merits of the appellants' claims under Art 8. In any event, for the reasons I have given above, carrying out the balancing exercise under Art 8.2, having regard to the best interests of A3 and A4 and the factors as set out in s.117B, I find that the appellants' removal would be disproportionate in that the public interest does not outweigh any interference with their (and A3's) protected rights under Art 8.
57. Consequently, the decisions to remove A1, A2 and A4 breach Art 8 of the ECHR.
Decision
58. The decision of the First-tier Tribunal to dismiss the appellants' appeals under Art 8 involved the making of an error of law and is set aside.
59. I remake the decision allowing the appeals of A1, A2 and A4 under Art 8 of the ECHR.

Signed

A Grubb
Judge of the Upper Tribunal

Date 5 December 2016

TO THE RESPONDENT
FEE AWARD

I have allowed the appeals under Art 8 and, in all the circumstances, I consider it appropriate to make a full fee award of any fee that has been paid.

Signed

A Grubb
Judge of the Upper Tribunal

Date 5 December 2016