Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/47856/2014
IA/47863/2014
IA/47869/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd October 2016
On 24th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) RAFAEL [M]
(2) PATRICIA [C]
(3) [A C]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Claire (Counsel)
For the Respondent: Mr S Whitwell (Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Majid, promulgated on 30th March 2016, following a hearing at Taylor House on 18th March 2016. In the determination, the judge allowed the appeals of the Appellants whereupon the Respondent Secretary of State applied for, and was granted, permission to appeal to the Upper Tribunal.
The Appellants
2. The Appellants are citizens of Brazil and appeal against the decision of the Respondent dated 10th November 2014, refusing them leave to remain in the UK under the Immigration Rules. The First and Second Appellants are the father and mother of the Third Appellant.
3. At paragraph 11 of the determination, the judge states that "The marital relationship is genuine" but provides no reasoning for this conclusion (see paragraph 11(a)). At paragraph 11, the judge also states that "The best interests of the child (wherever possible) is manifestly in favour of the daughter to remain with her two parents and not to be uprooted from a culture which is the only one known to her compared with the other country's" (see paragraph 11(d)). Mr Whitwell appearing before me on the Secretary of State's behalf stated that this was inadequate reasoning and wrong statement of the law because whereas the best interests may well be for a child to remain with the parents, it is not, without any further reasoning, not to be uprooted from the culture in which she lives, given that she is 8 years of age. At paragraph 16, the judge concludes with the observation that, "These Appellants can benefit from the Rules because the 'best interests' of the Third Appellant demands that she should not be uprooted from the British culture as her interests will not be served if she is separated from her biological parents". Mr Whitwell submitted that this was problematic because the "best interests" consideration was only one consideration amongst many others which had to be taken into account and the way in which this was stated appeared to indicate that it was the only consideration, and a governing one at that, which the judge had to take into account.
4. For his part, Mr Claire, appearing on behalf of the Appellants submitted that, as the grant of permission stated, it was not clear whether the judge had allowed the appeal with respect to the Third Appellant, the child, under Rule 276ADE, and if so, upon what basis, because no reasons were given to justify such a decision, and it was not clear whether the appeal was allowed under Article 8 outside the Rules either. It would have been better, submitted Mr Claire, if the judge had taken this into account. However, at paragraph 11, the judge has referred to the fact that the best interests of the child are to remain with the parents, and the child is accustomed to the culture in this country, and that if the determination is read broadly and as a whole, it was sustainable.
Error of Law
5. I am satisfied that the making of the decision by the judge involved the making an error on a point of law (see Section 12(1) of TCA 2007) such that I should set aside the decision. My reasons are that the judge does not make it clear which provisions of the Rules are being considered. The emphasis is very much on the Third Appellant, the child, and even then, the fact that the "best interests" of the child are a primary consideration, as explicated in ZH (Tanzania), is not made clear. This is important because other considerations, such as the illegal or unlawful behaviour of the parents, must also be factored into the equation. Furthermore, the judge does not make it clear how the appeal of the Third Appellant, the child is allowed, and whether this is under paragraph 276ADE or under freestanding Article 8 jurisprudence. In any event, the case of Zoumbas [2013] UKSC 75, which involved much older children is authority for the proposition that even if the best interests of the child is to remain with the parents, if the parents are being removed, then the best interests do not stand to be necessarily jeopardised, and no attention is drawn to this important case.
Remaking the Decision
6. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today.
7. I am allowing this appeal to the extent that it is submitted back to the First-tier Tribunal, to be heard by a judge other than Judge Majid, under Practice Statement 7.2(b) in that he major or extent of any judicial fact-finding which is necessary for the decisions appealed to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision

This appeal is allowed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 22nd October 2016