Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/45809/2014
IA/45811/2014
IA/45817/2014
IA/45829/2014
IA/45843/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2015
On 20 January 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellants

and

DTA
dMa
tTa
tka
ea
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellants: Mr Clive Jarvis, Senior Home Office Presenting Officer
For the Respondent: Ms R Manning, instructed by Pickup Scott, Solicitors

DECISION AND REASONS

1. I shall refer in this decision to the respondents as the appellants and to the Secretary of State as the respondent (as they appeared respectively before the First-tier Tribunal). The appellants are citizens of Ghana. The first and fifth appellants are the parents of the second, third and fourth appellants who are children under the age of 18 years.
2. The appellant TKA is physically healthy but has been diagnosed as being on the autistic spectrum and has delayed speech and language development. The younger child TTA is also physically healthy and he has also been diagnosed as being on the autistic spectrum and suffers from similar problems. The child DTA (the youngest of the children) was about 3 years old at the date of the First-tier Tribunal hearing and has speech and language difficulties. The appellant appealed against the decisions of the respondent dated 30 October 2014 for removal from the United Kingdom by way of directions under Section 10 of the Immigration Act 1999. Their appeals were heard in the First-tier Tribunal (Judge Carlin) which, in a decision promulgated on 26 February 2015 allowed the appeals on human rights grounds (Article 8 ECHR). The Secretary of State now appeals, with permission, to the Upper Tribunal.
3. A number of issues arose at the hearing of the Upper Tribunal. Judge Gibb granted permission on 22 April 2015 but did not give permission on grounds 1 and 2(a) of the Secretary of State's application but did find that ground 2(b) was arguable. Mr Jarvis, for the Secretary of State, sought to argue that permission should have been granted on all grounds (Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC)). Secondly, the decision of Judge Carlin makes no reference to an earlier determination in the First-tier Tribunal by Judge Blandy involving the same appellants (other than the second appellant in the present proceedings who had not been born at that time) which was promulgated on 12 January 2012. That determination arose from decisions of the Secretary of State to serve on the appellants (on 25 November 2011) forms IS151A notifying them that a decision would be made to remove them under Section 10 of the 1999 Act. The appeals to Judge Blandy proceeded, inter alia, on Article 8 grounds but were dismissed in their entirety. Judge Blandy considered at length the autism of the appellants TKA and TTA and found their removal with their parent to Ghana would not be disproportionate. It is not clear why Judge Blandy's determination was not brought to the attention of Judge Carlin who appears to have been completely unaware of it.
4. The ground upon which Judge Gibb granted permission consisted of a challenge to the First-tier Tribunal decision on the basis that no consideration was given to Sections 117A and 117B of the 2002 Act (as amended). The Secretary of State argues that the judge failed to have proper regard to the public interest concerning the removal of this family to Ghana.
5. I find that Judge Carlin has erred in law such that his decision falls to be set aside. I have reached that conclusion for the following reasons. At [36 - 38] of the decision, Judge Carlin wrote:
36. I then went on to consider Article 8(2) and whether the interference and family life is necessary in the interests set out in Article 8(2). This involves consideration of whether the interference in family life in removing the rest of the family from the United Kingdom is proportionate to the legitimate public end, namely the economic wellbeing. In do so it was clear from the case law generally (for example see AG (Eritrea) [2007] EWCA Civ 801) that it is not necessary to find exceptional circumstances when deciding there has been violation of the rights set out in Article 8.
37. Whilst there is authority which indicates that in all the circumstances, interference with family life would be justified by the requirements of immigration control (for example see Mukarkar [2006] EWCA Civ 1045) a different approach may be justified in a small minority of exceptional cases identifiable on a case by case basis.
38. In considering proportionality I was of the view there was strong evidence that the eldest two boys had significant difficulties having been diagnosed as on the autistic spectrum and that it is likely that the youngest child, D, will have similar problems albeit that the evidence before me suggests the he may not be as significantly affected as his two elder brothers (sic). On those facts and on the basis that the evidence before me suggests the three boys will be disadvantaged by living in Ghana, I was of the view that it was not proportionate to remove the parents of TKA and his brothers from the United Kingdom.
6. The paragraphs which I have quoted are problematic. The judge has made no effort to particularise the public interest in the instant appeal. At [36], he begins to deal with the public interest but then only observes that it was not necessary to find exceptional circumstances in order for there to be a violation of Article 8. Paragraph [37] is a bland statement of the general law, an observation that "a small minority of exceptional cases" may succeed under Article 8. Paragraph [38] focuses entirely upon the problems of the minor appellants. Mr Jarvis submitted that the paragraphs [36 - 38] appear to read as if taken from a determination written some ten years ago and certainly prior to the amendments to the 2002 Act. I agree. The failure of the judge to refer to Section 117 may not in itself constitute an error of law but the focus which those sections bring to the public interest should have compelled the First-tier Tribunal to address that interest with a far greater degree of particularity than the judge has done in the instant appeal.
7. I find that the judge's is, for the reasons given above, flawed and his decision is set aside accordingly. I also observe that the judge's treatment of the evidence concerning medical facilities in Ghana [22] is, in my view, inadequate. The judge had before him the country of information COI response together with a medical report from a Dr Lamptey. The judge preferred the evidence of Dr Lamptey but his stated reasons for doing so are sketchy, to say the least. The evidence will need to be addressed in much greater detail by the next Tribunal. That Tribunal will also need to consider relevance of the determination of Judge Blandy dated 12 January 2012, a copy of which has now been added to the Tribunal papers.
Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 26 February 2015 is set aside. The appeals are remitted to the First-tier Tribunal (not Judge Carlin) for that Tribunal to remake the decisions.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 1 January 2016

Upper Tribunal Judge Clive Lane