Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/48327/2014
IA/48353/2014
IA/48375/2014
IA/48381/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decisions & Reasons promulgated
On August 25, 2016
On August 26, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

A A A
J K S
W T M
J A S
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Timpson, Counsel, instructed by AGI Solicitors
For the Respondent: Mr McVeety (Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellants are citizens of Ghana. On October 15, 2014 the appellants applied for leave to remain on family/private life grounds. The respondent refused their claims on November 11, 2014 under the Immigration Rules and article 8 ECHR.
2. The appellants appealed those decisions under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on December 1, 2014.
3. The appeal came before Judge of the First-tier Tribunal Crawford (hereinafter referred to as the Judge) on May 18, 2015 and in a decision promulgated on May 22, 2015 he refused their appeals on all grounds.
4. The appellants lodged grounds of appeal on June 5, 2015 submitting the Judge had erred.
5. Permission to appeal was granted by Judge of the First-tier Tribunal Gillespie on August 6, 2015 and the matter came before me on June 13, 2016. After hearing submissions from the two representatives I found there had been an error in law in respect of both the first and second-named appellants under Paragraph 276ADE HC 395 and in respect of all four appellants under article 8 ECHR. My reasons for those conclusions are set out in my earlier decision.
6. A fresh bundle was served which included documents previously served along with more recent medical evidence in relation to the second-named appellant. Both representatives agreed that as the second-named appellant had been here for more than seven years then the correct test to apply when considering paragraph 276ADE HC 395 would be whether it would be reasonable to expect him to go to Ghana. It was also agreed that a similar test would apply under when considering his article 8 claim and Section 117B(6) of the 2002. If his appeal succeeded then the remaining appellants would all succeed under article 8 ECHR.
7. Unless and until a tribunal or court directs otherwise, the Appellants continue to be granted anonymity. No report of these proceedings shall directly or indirectly identify any of them or any member of their 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.
SUBMISSIONS
8. Mr McVeety submitted that when assessing the issue of reasonableness I had to have regard to all of the factors and that included, he submitted, the totality of the medical evidence, the country evidence about availability of medical treatment in Ghana, what the parties have done in the United Kingdom, the second-named appellant's parents' immigration history, the costs to the NHS, the fact the children had been educated at public expense and the fact they spoke English a language spoken in Ghana. He argued these were all significant factors that should be properly weighed up when considering whether it was reasonable to expect the second-named appellant to have to leave the country. The arguments to be advanced for section 117B(6) of the 2002 Act were the same and the test was the same. He submitted it was not disproportionate to require the appellant to leave and to be joined by his family in Ghana.
9. Mr Timpson submitted the correct approach in such cases was set out in PD and Others (Article 8 : conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC) and that in considering conjoined Article 8 ECHR claims of multiple family members, decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case. He then submitted that as the second-named appellant had been there for more than seven years there had to be strong reasons and very significant factors for not allowing the appeal under article 8 bearing in mind Section 117B(6) of the 2002 Act. He submitted the fact the parents had poor immigration histories and the father had served a prison sentence should not be held against the second-named appellant when considering reasonableness. He referred me to MA (Pakistan) EWCA Civ 707 which states-
"46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. 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 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.
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."
10. Mr Timpson submitted the medical evidence was a strong factor as was the fact there was a lack of facilities available in Ghana for the appellant. Taking all of the evidence together he submitted there were no "very significant" factors that counted against the second-named appellant and not only should his appeal be allowed under paragraph 276ADE HC 395 but the remaining appellants should succeed under article 8 ECHR.
DISCUSSION AND FINDINGS
11. When this matter was heard in the FTT the Judge had before him many of the documents that were before me today. There were some additional documents provided by both Birmingham Children's hospital and Great Ormond Street Hospital. However, it seemed common ground that the medical prognosis was similar to that faced by the FTT. Professor Burch indicated in his letter dated August 12, 2016 that heart transplants were not available in Africa but this claim remains unsupported by any country evidence. In fact, the FTT concluded on evidence presented to it that specialist cardiac care was available and whilst payment was required there were facilities to enable such operations to be carried out, if required.
12. The latest medical evidence stresses that the second-named appellant has improved slowly and steadily and manages to go to school and a school report at page 106 of the latest bundle suggests that in most areas the second-named appellant was progressing as expected for a child his age. A heart transplant may be required before the second-named appellant is 16 but this prognosis remains unaltered from the medical evidence that was adduced to the FTT. No further oral or written was advanced to suggest the second-named appellant's condition had worsened.
13. The error of law occurred because the FTT considered the second-named appellant's private life claim under paragraph 276ADE(vi) HC 395 as against sub-section (iv). The test is different with sub-section (vi) applying a "very significant obstacles test" and applying only to person over the age of 18 whereas sub-section (iv) applies to persons under the age of 18 who have lived here for at least seven years and the test is whether it would be reasonable to expect the appellant to leave the United Kingdom.
14. The Courts, including the Upper Tribunal, have provided advice and guidance on applications outside of the Rules and cases I have had considered, in particular, include Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197, SS (Congo) and Others [2015] EWCA Civ 387, AM (S 117B) Malawi [2015] UKUT 0260 (IAC), MA (Pakistan) [2016] EWCA Civ 707 and Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) and Rhuppia [2016] EWCA Civ 803. These cases are similarly relevant when considering paragraph 276ADE HC 395 because both paragraph 276ADE HC 395 and Section 117B(6) both require an appellant to be a child and to have been here for at least seven years. If those requirements are met, then the test to be applied is whether it would be reasonable to require the appellant to leave. The authorities below therefore provide useful guidance when considering either scenario.
15. In Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 the Tribunal gave the following guidance:
a. As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
b. It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.
c. Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
d. Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.
e. Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic well-being of society amply justifies removal in such cases.
16. In SS (Congo) and Others [2015] EWCA Civ 387 the Court of Appeal stated:
"51. ... the approach to Article 8 in light of the Rules in Appendix FM-SE should be the same as in respect of the substantive LTE and LTR Rules in Appendix FM. In other words, the same general position applies, that compelling circumstances would have to apply to justify a grant of LTE or LTR where the evidence Rules are not complied with.
52. This is for two principal reasons. First, the evidence rules have the same general objective as the substantive rules, namely to limit the risk that someone is admitted into the United Kingdom and then becomes a burden on public resources, and the Secretary of State has the same primary function in relation to them, to assess the risk and put in place measures which are judged suitable to contain it within acceptable bounds. Similar weight should be given to her assessment of what the public interest requires in both contexts.
53. Secondly, enforcement of the evidence rules ensures that everyone applying for LTE or LTR is treated equally and fairly in relation to the evidential requirements they must satisfy. As well as keeping the costs of administration within reasonable bounds, application of standard rules is an important means of minimising the risk of arbitrary differences in treatment of cases arising across the wide range of officials, tribunals and courts which administer the system of immigration controls. In this regard, the evidence Rules (like the substantive Rules) serve as a safeguard in relation to rights of applicants and family members under Article 14 to equal treatment within the scope of Article 8?.
54. ? the fact that an applicant may be able to say that their case is a 'near miss' in relation to satisfying the requirements of the Rules will by no means show that compelling circumstances exist requiring the grant of LTE outside the Rules. A good deal more than this would need to be shown to make out such a case. The respondents' argument fails to recognise the value to be attached to having a clear statement of the standards applicable to everyone and fails to give proper weight to the judgment of the Secretary of State, as expressed in the Rules, regarding what is needed to meet the public interest which is in issue. The 'near miss' argument of the respondents cannot be sustained in the light of these considerations and the authority of Miah v Secretary of State for the Home Department [2012] EWCA Civ 261, especially at [21]-[26]."
17. In AM (S 117B) Malawi [2015] UKUT 0260 (IAC) the Tribunal stated:
"14. ? Upon their proper construction neither s117B(2), nor s117B(3), grants any form of immigration status to an individual who does not otherwise qualify for that status, because they have failed to meet the requirements set out in the Immigration Rules for the grant of that status. If it was the intention of Parliament that the requirements of the Immigration Rules should be over-ridden, merely because an individual could establish that they were able to speak English, or were financially independent, to some degree, then we are satisfied that Parliament would have said so in the clearest terms. In addition, we consider that Parliament would have considered it necessary to set out what degree of fluency, or, level of financial independence was required of the individual, and the immigration status that the individual would be entitled to once it had been demonstrated. Plainly these statutory provisions do no such thing. One must continue to look to the Immigration Rules to discern what Parliament considers are the requirements to be met by a claimant, and the length of the period of leave to be granted to them if those requirements are met.
18. The mere fact that the evidence in a particular case establishes fluency or financial independence to some degree, does not prevent the Respondent from relying upon these matters as public interest factors weighing against the claimant. The Respondent would only be prevented from doing so if a claimant could demonstrate fluency, or financial independence, to the level of the requirements set out in the Immigration Rules. There was therefore no error of law in the Judge's approach to the issues of fluency and financial independence in the context of her consideration of s117B. The Appellant could obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.
23. ? We regard the immigration history of the individual whose Article 8 rights are under consideration as an integral part of the context in which any Article 8 decision is made, whether by the Respondent or the FtT.
27. ? In our judgement all those who have been granted by the Respondent a defined period of leave to enter the UK, or, to remain in the UK (which includes both those with a period of limited leave to remain, and those with a period of discretionary leave to remain), hold during the currency of that leave, an immigration status that is lawful, albeit "precarious". Even if the individual genuinely holds a legitimate expectation that their leave will ultimately be extended further by the Respondent, they have no absolute right to insist that this will occur, whether or not they meet the requirements of the Immigration Rules at the date of their application; HSMP Forum UK Limited [2008] EWHC 664. Still less will those who merely hold a genuine, and well founded belief, that they will at some future date be able to meet the requirements of the Immigration Rules and thus be able to obtain an extension; E-A (Article 8 - best interests of a child) Nigeria [2011] UKUT 00315 (IAC).
28. In all such cases, in order to obtain the variation that they seek (whether to gain a further grant of leave which is limited in duration, or is indefinite) the individual will need to meet at some future date the requirements of the Immigration Rules that are then in force; Odelola v Secretary of State for the Home Department [2009] 1WLR 1230. The ability of the individual to do so is not capable of prediction in advance - even if at any given moment during the currency of their existing leave the individual genuinely believes that they are continuing to meet the requirements attached to their existing grant. Indeed, the ability of those who have not yet been granted indefinite leave to remain, to obtain a variation of their leave in the future, will probably always depend in part upon matters that are outside their control - whether that be the actions of others, or the future prosperity of themselves or others.
32. To put the matter shortly, it appears to us that a person's immigration status is "precarious" if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. It is precisely because such a person has no indefinite right to be in the country that the relationships they form ought to be considered in the light of the potential need to leave the country should that grant of leave not be forthcoming."
18. In Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) the Tribunal concluded-
"Section 117B (6) is a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the section 117B(6) public interest prevails over the public interests identified in section 117B (1)-(3)."
19. The Court of Appeal recently considered Section 117B(6) in MA (Pakistan) [2016] EWCA Civ 707 and made it clear that "?the significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted" although as the Court made clear in its decision merely being under the age of eighteen and in the country for at least seven years did not mean an automatic entitlement to be allowed to remain.
20. Turning to the facts of these appeals there is ample evidence of the second-named appellant's progress at school and his medical condition.
21. I also note that the second-named appellant only knows this country as his home and Mr Timpson described him as being more British than Ghanaian.
22. The second-named appellant has done nothing wrong but in assessing reasonableness I must, as argued by Mr McVeety, have regard to all of the matters pertinent to the case. He was born here because his parents overstayed beyond the terms of their leave.
23. The child must not be blamed for his parent's poor immigration history but I reject Mr Timpson's submission that it is something I should have no regard to. It remains a factor to consider when reasonableness is assessed.
24. I have considered the second-named appellant's own personal circumstances when considering his claim under the Rules and the fact there are medical facilities available in Ghana that would enable him to continue his treatment is a factor I have to have regard to. The FTT found the second-named appellant's life has been saved due to NHS facilities and no doubt thousands of pounds have been spent to date treating him.
25. Case law makes clear that the fact treatment may have to be paid for in Ghana is not a reason to say it would be unreasonable to return the appellant. The parents demonstrated that if they returned with him they have the ability to obtain work. There is evidence the second-named appellant's father has worked illegally in the United Kingdom. If there were no facilities to treat the appellant, then that would be a factor to have regard to but that is not the evidence before me.
26. The argument advanced by Mr Timpson is that the factors that should be considered are neither significant enough nor serious enough to lead to it being reasonable for this appellant to have to leave. The test of reasonableness poses a less exacting and demanding threshold than that posed in other tests in this area such as insurmountable obstacles, exceptional circumstances and very compelling factors.
27. The application of the reasonableness test involves a balance of all material facts and considerations and is fact sensitive.
28. Ultimately, the factors to which I give determinative weight are:
a. The length of time the second-named Appellant has lived in the United Kingdom;
b. His immersion into life in the United Kingdom having regard to his age;
c. The fact he has not reached a critical stage of his personal and educational development;
d. His minimal connections with his country of origin.
e. The facts the first-named appellant has no legal right to remain in the United Kingdom. Her immigration status is that of unlawful over-stayer and this is a factor of undeniable weight albeit I have regard to the fact a child's best interests should not be compromised on account of the misdemeanours of its parents.
f. The fact there has been great reliance on the public purse to fund his medical care.
g. The child has benefited from being educated here but there is no evidence to suggest he could not be educated in Ghana and he has not spent what are described as the "formative years of his life" in education here.
29. Applying the test in paragraph 276ADE HC 395 and having regard to all of the above factors I am satisfied that it would not be unreasonable for the second-named appellant to have to leave the United Kingdom. The child, despite Mr Timpson's submission that he is more British, remains a Ghanaian national who can be both educated and medically treated in Ghana. Those are important factors to consider and in assessing reasonableness of return under paragraph 276ADE they are more significant than the second-named appellant's parents' poor immigration history. The fact the parents could obtain work and have spent most of their lives in Ghana is also a factor I have taken into consideration. Mr Timpson maintained that the second-named appellant's medical condition is of most significance in this appeal and the fact there is treatment available and he is stable are significant factors I must have regard to.
30. I therefore find the second-named appellant does not satisfy paragraph 276ADE HC 395.
31. The first-named appellant could only succeed under paragraph 276ADE(vi) and she had to show "very significant obstacles". Mr Timpson did not advance any such obstacles and in light of the fact I have rejected the claim for her son on a test that is less stringent I also find that she does not satisfy the requirements of paragraph 276ADE HC 395.
32. In order to consider the claim outside the Rules I would have to be satisfied there are exceptional, or compelling, circumstances. Section 117B(6) of the 2002 Act enables me to consider a claim where
"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."
33. The second-named appellant is a qualifying child and I have therefore considered all of the evidence above and in particular the factors set out in paragraph [28] above.
34. In EV (Phillipines) [2014] EWCA Civ 874 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):
"34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
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; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37. In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully."
35. The fact that the second-named appellant 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.
36. All children speak English but English is spoken in Ghana. I accept none of the appellants have visited Ghana but that is due entirely to the fact their parent failed to leave when their leave expired. They have all been educated at the appropriate level but there is nothing in the material before me that supports a submission that they cannot be educated in Ghana. None of the children are at a critical age for schooling purposes. There is a reference in the updated bundle to the family attending a Methodist Church. No material has been advanced to suggest they would be unable to attend church and Mr Timpson did not suggest any issue in this regard. The second, third and fourth-named appellants have social lives consistent with their ages albeit they are bound to be dominated by their lives with each other. There is nothing to suggest their parents provide anything other than a loving and safe environment for the appellants. I have already found there is medical treatment available for the second-named appellant and there are no health issues for the other minor appellants. Any return would be with their parents and whilst I note what both parents said about their ties it seems that they have limited family ties here. The fact the eldest child has been here for over seven years is a factor I attach weight to but it is a factor to consider and not a trump card.
37. Given the immigration history of the parents the decision to refuse leave to the minor appellants is proportionate even though it could be argued it is in their best interests to remain in the UK. Their private life was all created at a time when the parent's status was precarious and that is a relevant factor for me to have regard to when considering proportionality as the conduct of the parents is relevant to the children's own situation and does not amount to blaming the children even if they may be prejudiced as a result.
38. For these reasons I find removal would not be disproportionate and I find all of the appellants' appeals under article 8 fail.
DECISION
39. There was a material error. I have remade the decision and dismiss all claims under both the Immigration Rules and Article 8 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD
No fee award is made.

Signed Dated

Deputy Upper Tribunal Judge Alis