Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47602/2014
IA/47617/2014
IA/47624/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 October 2016
On 4 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

aq (Pakistan)
TMr (Pakistan)
Ist (Pakistan)
(anonymity directioN MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R de Mello, Counsel, instructed by David Tang & Co
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Monson promulgated on 19 November 2015. On 11 July 2016, I found an error of law in the decision. With the concurrence of the parties, I retained the appeal in the Upper Tribunal for the decision to be re-made. My Error of Law Decision is included in this decision as an Appendix. As a result, there is no need for to repeat the factual background in this case.
2. The appeal relates to three nationals of Pakistan who form a family unit, the most significant member of which for the purposes of this appeal is the child of the family (whom I do not name to preserve anonymity), born in 2003, who has spent the majority of her lifetime in the United Kingdom. It is conceded by the Secretary of State that the parental claims are parasitic upon that of the daughter and that my decision will be determinative of theirs.
3. For convenience, I will refer to the appellants as the mother, the father and the daughter respectively. No discourtesy is intended: only the safeguarding of the daughter's anonymity.
4. I heard evidence from the mother, the daughter and the father, who each confirmed the content of their witness statements, answered some supplementary questions and were cross examined. A substantial bundle of documents was placed before me, and much of the additional questioning was directed to identifying relevant documents and placing them in context. I then heard submissions from the parties' representatives and reserved my decision.
Immigration history
5. The family's immigration history is not contentious. The mother came to the United Kingdom in September 2000, and successfully completed an LLM at a leading university. She returned to Pakistan in 2002.
6. The mother returned to the United Kingdom on 21 November 2004, as a student, along with the father and the daughter (then 17 months old) as dependent relatives. They all had valid leave to remain until 30 October 2011.
7. An application for leave to remain under human rights grounds was made on 27 October 2011 and refused on 6 February 2012. The family's appeal was dismissed on 27 April 2012. Further applications were unsuccessful and the family were issued with forms IS.151A as overstayers. It is not disputed that the daughter has resided in the United Kingdom for a period in excess of 7 years.
Evidence
8. The mother gave evidence of returning to the United Kingdom in 2004 with her husband and daughter. She describes her daughter as being inclined towards a career in law, a field in which she has considerable academic qualification. The daughter, now in year 9, has performed well at school showing a particular aptitude for languages. She recently came first in a school mathematics event and produced the certificates awarded.
9. The mother says that the family speak English at home, and although she tried to encourage her daughter to speak and read Urdu, she was reluctant to learn.
10. She says that French and Spanish are not taught on the school curriculum in Pakistan, making reference to an article by M Garcia, 'Foreign Language Learning Orientations: The Case of Pakistan' (2014) Pakistan Annual Research Journal 1-14 at page 202 of the Appellants' Bundle (AB 202). She referred to a National Curriculum Document (AB 201), and sought to differentiate between the subjects taught in Pakistan and those which the daughter was currently studying in the United Kingdom (AB 123-124). However, the lack of specificity made meaningful comparison difficult, especially in relation to arts and drawing. She indicated that religious education in Pakistan is limited to the study of Islam as opposed to the multi-faith approach in the United Kingdom; and that history merely covers that of Pakistan and not the rest of the world.
11. The mother took me to a letter from a Secondary School in Sindh Province dated 26 November 2014 (AB 146) which states, among other things, that a pupil seeking admission at Secondary Level must have Primary Education in various compulsory subjects including Sindhi and Urdu (both language and literature). This is repeated in a more recent letter from the same school dated 27 July 2016 (AB 146), and confirmed in a similar letter from another school dated 7 July 2016 (AB 147).
12. The mother spoke of being passionate about women's rights and undertaking academic research in gender studies and honour killing.
13. The daughter's evidence was to the effect that she was well settled at home and at school, where she was performing well and has a mix of school friends. She is gifted with languages although her favourite subjects are mathematics, history and religious education. She has had her poetry published in a school collection. Out of school, she enjoys swimming with a local club and she assists an elderly neighbour with domestic chores. She undertakes charity work, helps at a food bank, and has taken part in sponsored walks raising money alongside her father.
14. She speaks only English at home, and has no written or spoken Urdu or Sindhi. On the rare occasions she speaks by telephone or Skype with her extended family in Pakistan, it is invariably in English.
15. The father's evidence reinforced that of the wife and daughter. He spoke of the difficulty his daughter would have in adjusting to life in Pakistan after her privileged and liberal education and upbringing in the United Kingdom, particularly being a girl. He describes the Pakistan to which she would return as an 'alien culture'. He indicated that schooling in Pakistan would be very primitive compared to that which his daughter currently enjoys, being no more than (in his words) 'chalk and board'.
16. The father emphasised that both he and his wife were well-integrated into British society, spoke English fluently and were not a burden on the state, being largely supported by relatives in America. He suggests that he would find it hard to secure employment in Pakistan.
17. The evidence of mother, daughter and father was largely unchallenged by the Respondent, who adduced no evidence.
Respondent's submissions
18. Mr Armstrong submitted that the family had been overstayers since 26 September 2014, and that little weight should be attached to family life enjoyed during the time that they have been in the United Kingdom unlawfully. He described the daughter as something of a pawn, and submitted that any difficulties she might face on return to Pakistan result entirely from her parents refusal to return on the expiration of their visas. He suggested that the parents had kept the daughter distanced from her cultural heritage (and its language in particular) as a calculated means of improving her (and their) immigration status. He argued that there was no reason why they could not settle in Pakistan as a family unit, and that there were schools in which the language of instruction was English so there would be no problem with the daughter's education. He submitted that the daughter had an aptitude for languages and would be able to pick up Urdu and Sindhi without too much difficulty.
Appellant's submissions
19. Mr de Mello pointed to the difficulties the daughter would experience at school in that she could not enter or advance in secondary education without certificated proficiency in both the national language (Urdu) and the local language (Sindhi). He reviewed the documentation which was supportive of the family's case and emphasised the superior quality of education which the daughter was receiving in the United Kingdom as compared to that which would be available in Pakistan. Having arrived in England age 17 months, the daughter, it was submitted, was educationally, socially and culturally British. Mr de Mello referred me to Guidance issued by the Government in the form of a Green Paper entitled, Every Child Matters (2003, Cm 5860), and in particular paragraphs 8-10 of the executive summary and paragraphs 1.3, 1.13, and 2.14 of the Report itself.
The law
20. Both representatives were agreed as to the relevant law to be applied. The following paragraph of the Immigration Rules governs the situation:
276ADE (1) - The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(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; [...] (emphasis added)
21. There is no dispute that the daughter has lived continuously in the United Kingdom for more than 7 years. The single issue for me to determine, therefore, is whether it would be reasonable to expect the daughter to leave the United Kingdom.
22. Both representatives made reference to The Queen (on the application of MA (Pakistan) and others v Upper Tribunal and another [2016] EWCA Civ 705, which addressed how the test of reasonableness should be applied when determining whether or not it is reasonable to remove a child from the United Kingdom once he or she has been resident here for seven years.
23. The Court of Appeal restated at [23] the firmly established jurisprudence that the best interests of the child is a primary consideration which has to be taken into account in all cases where the child's interests are affected.
24. The following passages of the judgment of Elias LJ (with whom the rest of the Court agreed) are of particular relevance:
[40] ... It will generally be in the child's best interests to live with his or her parents and siblings as part of a family. [...] Had Parliament intended to require considerations bearing upon the conduct and immigration history of the applicant parent to be taken into consideration, I would have expected it to say so expressly, not for the matter to have to be inferred from a test which in terms focuses on an assessment of what is reasonable for the child. This does not in my view mean that the wider public interests have been ignored; it is simply that Parliament has determined that where the seven year rule is satisfied and the other conditions in the section have been met, those potentially conflicting public interests will not suffice to justify refusal of leave if, focusing on the position of the child, it is not reasonable to expect the child to leave the UK. [...]
[47] [...] If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so. The concept of "best interests" is after all a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents.
[48] In EV (Phillipines) Lord Justice Christopher Clarke explained how a tribunal should apply the proportionality test where wider public interest considerations are in play, in circumstances where the best interests of the child dictate that he should remain in the UK (paras. 34-37):
"35. A decision as to what is in the best interests of children will depend on a number of factors such as:
(a) their age;
(b) the length of time that they have been here;
(c) how long they have been in education;
(d) what stage their education has reached;
(e) to what extent they have become distanced from the country to which it is proposed that they return;
(f) how renewable their connection with it may be;
(g) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and
(h) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens." [...]
[49] Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.
25. Regard must also be had to section 55 of the Borders, Citizenship and Immigration Act 2009 which establishes an overriding obligation to have regard to the welfare of children in the Secretary of State's functions including those of immigration. This applies to all children present in the United Kingdom, whether or not they are citizens and whether or not they are lawfully present.
Analysis and conclusions
26. A primary consideration (though not necessarily the primary consideration) is the best interests of the daughter. On the evidence which I have heard and read, the daughter's best interests are that she remains in the United Kingdom. She is well settled in a family home, she is performing well at school which offers a quality which her parents regard as superior to that she would receive in Pakistan. She is growing up in a liberal and affirming environment. She helps her neighbour and is involved in activities such as swimming and charity fund raising events. She is fluent in English, and all her cultural and social ties are in the United Kingdom which she has not left since arriving when she was 17 months old.
27. Are the daughter's best interests are outweighed by public interest considerations? The following passage from the judgment of Elias LJ in MA (Pakistan) gives some assistance in assessing the relevance and weight to be afforded to the fact that a child's parents are be illegal overstayers.
[103] [...] The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way.
28. The indelible impression from the evidence is that the mother has cynically worked the system to her advantage and that of her husband and daughter. Her minimal efforts to instruct the daughter in Urdu strike me as having been both deliberate and calculated. But, as Mr de Mello colourfully put it in his submissions, the sins of the parent should not be visited on the child.
29. The Secretary of State, in her decision letter dated 7 November 2014 provided no strong reason for refusing leave to remain: the daughter's best interests and the weighty consideration of her 7 years' residence are not displaced by public interest considerations relating to her parents. The best interests of the daughter are that she remains in the United Kingdom and enjoys a liberal education through which she can achieve her potential. Returning her to Pakistan (a country and culture of which she has no memory and experience not having been there since she was a baby) would have a disruptive and deleterious effect on her education, notwithstanding that she would be returning with loving and supporting parents. Despite the daughter's linguistic gifts, having no knowledge of Urdu or Sindu would cause a significant hiatus in her education, placing her at a significant disadvantage amongst her peers.
30. In all the circumstances the daughter's appeal succeeds under the Immigration Rules. Since it is conceded by the Respondent that the parents' appeals are parasitic upon those of the daughter, it follows that notwithstanding that the mother and father's individual cases may be wholly unmeritorious, they too should have leave to remain during the daughter's minority.

Notice of Decision
(1) The Third Appellant's appeal is allowed under the Immigration Rules.
(2) The First and Second Appellants are entitled to such immigration status as the Secretary of State may deem fit until such time as the Third Appellant obtains her majority.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Third Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Mark Hill Date 3 November 2016

Deputy Upper Tribunal Judge Hill QC
APPENDIX: ERROR OF LAW DECISION

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47602/2014
IA/47617/2014
IA/47624/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 July 2016

[11 July 2016]

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

aq (Pakistan)
Tr (Pakistan)
st (Pakistan)
(anonymity directioN MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr D Bazini, Counsel, instructed by David Tang & Co
For the Respondent: Mr P Duffy, Home Office Presenting Officer

ERROR OF LAW DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Monson which was promulgated on 19 November 2015. It relates to three nationals of Pakistan who form a family unit, the most significant member of which for the purposes of this appeal is the child of the family (whom I do not name to preserve anonymity), born in 2003, who has spent the majority of her lifetime in the United Kingdom having arrived at the age of about 17 months with her parents.
2. The point came where the leave to remain on the parents' part came to an end. They had previously had the benefit of visas for academic study. They were thereafter classified as overstayers. Proceedings were brought for the return of the family unit to Pakistan. That gave rise to the Secretary of State's decision and in due course the appeal to the First-tier Tribunal.
3. In looking at the matter, the Judge deals fully with the history. He outlines the reasons for refusal under Rule 276ADE of the Immigration Rules and the application of Article 8 of the European Convention on Human Rights. He summarises the evidence and the law before reaching his conclusions which focus primarily upon the child's education and that projected were she to return to Pakistan.
4. The issue identified in grant of permission to appeal and principally pursued before me in the appellants' submissions is the misstatement of the evidence in paragraph 44 of the determination. Paragraph 43 correctly summarises the position and makes reference to a letter provided by the King Edward Secondary School in Sindh Province.
5. I have been taken to the original of that letter. The error into which the judge fell (which is effectively conceded on behalf of the Secretary of State) was that he asserted or assumed that the child would be in a position to enter secondary school in the Sindh Province and study the conventional curriculum while at the same time undertaking catch up work in other subjects, particularly the Urdu language which she currently does not speak.
6. It is submitted and I agree that on a proper reading of the letter from the school, the child would not be admitted into secondary education until such time as an entrance test in those compulsory subjects had been satisfied. In other words, the hiatus to the child's education would be markedly more significant in reality than is stated by the Judge. Although education is only one of a constellation of factors which must be considered coming to the decision on whether it is reasonable for the child to be returned, it is of such significance in the context of this case that a significant misstatement of the evidence clearly amounts to a material error of law.
7. This Tribunal cannot be confident that the later balancing exercise was properly and fairly carried out when the issue of continuity in education has been misstated to such a degree. The determination of the First-tier Tribunal must be set aside.
8. I am fortified in coming to that conclusion having been taken to the case of PD and Others (Article 8 conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC). This is a recent decision of the President sitting with Upper Tribunal Judge Bruce promulgated in March of this year, subsequent to the determination of First-tier Tribunal in this instance.
9. The elucidation of the law and how it is to be applied in cases such as these are instructive. As the determination of the First-tier Tribunal is to be set aside, it is appropriate that when it is remade it is done through the prism of the articulation of the law to be found in PD. The factual circumstances are similar in many ways to those here but I should make it abundantly plain that any apparent similarity does not of itself indicate that the final determination will be the same.
10. Both representatives submit that the correct forum for remaking the determination would be the Upper Tribunal and I agree. It would be wasteful of time and resources for it to be remitted to the First-tier Tribunal and accordingly the decision is to be remade in the Upper Tribunal on a date to be fixed.

Notice of Decision
1. Determination of First-tier Tribunal set aside.
2. Decision to be remade in the Upper Tribunal on a date to be fixed (time estimate 1.5 hours).

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 Mark Hill Date 11 July 2016

Deputy Upper Tribunal Judge Hill QC