Tribunal decisions

The decision

Upper Tribunal
Asylum and Immigration Tribunal Appeal Number: IA/48474/2013
IA/48484/2013
IA/48487/2013
IA/48471/2013

THE IMMIGRATION ACTS

Heard at Field House
On 16 October 2014
Determination Promulgated
On 7 November 2014

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL CHANA

Between

MRS FARZANA YEASMIN
MR ABDUL ILHAM JALIL
MASTER MOHAMMD ABDUL JALIL
MISS FATIMAH JAILIL
(Anonymity directions not made)
Appellant
and

THE SECRETARY Of STATE FOR THE HOME DEPARTMENT
Respondent

Representation

For the appellant: Ms J Isherwood, Senior Presenting Officer
For the respondent: Mr M.I. Hossain, Counsel

DECISION AND REASONS

1. The appellant is the Secretary of State and the respondents are citizens of Bangladesh born on 30 July 1983, 15 October 1975, 18 August 2006 and 16 February 2011 respectively. They are mother, father and their son and daughter. I shall however, for the sake of convenience, refer to the Secretary of State as the respondent and the four appellants as "the appellants" which are the designations they had before the first-tier Tribunal.

2. They appellants appealed against the decision of the respondent dated 6 November 2013 to refuse to vary their leave to remain in the United Kingdom on the basis of private and family life pursuant to paragraph 276B of the Immigration Rules. First-tier Tribunal Judge Moore dismissed the appellant's appeal pursuant to the Immigration Rules but allowed the appellants' appeal pursuant to Article 8 in a determination promulgated on 28 April 2014. Judge Saffer of the First-tier Tribunal gave the respondent permission to appeal and said that it is arguable that the Judge may have misapplied paragraph 276ADE of the Statement of Changes in Immigration Rules HX395 as indicated in the grounds of appeal.

Findings of the First-tier Tribunal Judge

3. The First-Tier Tribunal found the following.

I. The first appellant entered the United Kingdom on 1 July 2006 as a student with leave to enter, valid until 30 July 2007. Her husband, the second appellant joined her on 21 February 2007. On 18 August 2006, the third appellant was born six weeks after the first appellant entered the United Kingdom. The fourth appellant was born in the United Kingdom on 16 February 2011.

II. They have continued to live in this country and were granted further leave to remain on several occasions, the last leave to remain being valid until 12 October 2013.

III. On 9 October 2013 an application was made which was based on the third appellant having lived in the United Kingdom continuously for more than seven years and in the circumstances has met the requirements of paragraph 276 ADE (iv) of the Immigration Rules. As a consequence the three other appellants should also be granted leave to remain in line with the third appellant's leave as they have demonstrated that they have a genuine and subsisting relationship with the third appellant.

IV. The case turns on the issue in relation to the third appellant who was born on 18 August 2006 and is now approaching eight years of age. The fourth appellant is just three years of age and has yet to start nursery school.

V. The third appellant who has lived in this country for seven years and was born in the United Kingdom in August 2006 would appear to satisfy the requirements of leave for him to remain in the United Kingdom on the grounds of private life by reference to paragraph 276 ADE (iv) of the Immigration Rules.

VI. It is the best interests of the third appellant to remain with his parents, wherever they may be. Indeed it was never the intention of the respondent in her decision for anything other than for the family to return to Bangladesh as a family unit.

VII. It is clear from the judgement of ZH Tanzania that the best interests of the child is an issue which has to be addressed first and is a distinct stage of the enquiry. Consideration should be given to a variety of individual circumstances, such as the age of the child, the level of maturity of the child, the presence or absence of parents, the child's environment and experiences, (guidelines on determining the best interests of the child UNHCR May 2008) and the comments of Baroness Hale in ZH Tanzania.

VIII. The appellant now appears to be doing particularly well at school having made a number of school friends and demonstrating excellent progress and clearly removing him from this environment would not only disrupt such educational progress, it would inevitably cause the breakdown of relationships made at school and would be likely to substantially hinder educational progress and future prospects in terms of job or career. The third appellant clearly satisfies the Immigration Rules under paragraph 276 ADE (iv).

IX. In considering particular circumstances which constitute exceptional circumstances contained in Article 8 of the EEC HR, the third appellant's education will be disrupted and this would lead to long-term disruption to the third appellant's life. The evidence from his mother, the first appellant was that they no longer have any family in Bangladesh or any cultural and religious links to that country.

X. There is a genuine and subsisting parental relationship between the third appellant and his parents and it would be unreasonable to expect the child to leave the United Kingdom. He has never visited Bangladesh and there is no evidence of any existing family or social ties with that country. He has never attended school in Bangladesh and whilst he can converse occasionally with his father in Bengali, he does not read or write in that language. The third appellant would not be likely to integrate readily into Bangladesh. The guidance recognises that after seven years, children start putting roots and integrate into life in the United Kingdom and requiring the third appellant to leave the country would be unreasonable.

XI. All four appellant have lived in the United Kingdom lawfully and there is no issue of criminal conduct or that they have not had recourse to public funds in order to maintain and accommodate themselves.

XII. The respondent's decision is an interference with the exercise of the third appellant's right to respect for his private life and that interference is of such gravity as to potentially engage Article 8. It would also be disproportionate to the third appellant to leave the United Kingdom in order that the respondent's legitimate aim and right to regulate and control immigration should be maintained.

XIII. The parents of the third appellant also get the benefit from the third appellant's right to private life.

The respondent's grounds of appeal

4. The respondent in her grounds of appeal states the following which I summarise. Paragraphs 276 ADE (iv) allows an applicant to succeed under the Rules if he, is under the age of 18 years and has lived continuously in the United Kingdom for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the United Kingdom. The Rule therefore has two limbs, the first is that the child must have lived continuously in the United Kingdom for seven years and it cannot be reasonable for him to leave the United Kingdom. The Judge found that it is not disputed that the third appellant has lived in the United Kingdom continuously for more than seven years, having been born in the United Kingdom in August 2006. In those circumstances, the third appellant would appear to satisfy the requirements of leave to remain in the United Kingdom on the grounds of private life by reference to paragraph 276 ADE (iv) of the Immigration Rules.

5. The Judge however failed to properly to consider the second limb, the reasonableness of the third appellant having to leave the United Kingdom in light of his age. In Azimi-Moayed [2013] UKUT, the Upper Tribunal held that the connection which are established by a child from birth to age 7 are less significant than those established in the seven year period later in a child's minority.

6. The third appellant can be removed from the United Kingdom with his parents and younger sibling. The Judge found that contrary to his parent's evidence, the third appellant did understand and conversion Bengali with his parents. In EA (article 8-best interests of the child) (Nigeria) [2011] UKUT (IAC) it was held by the Upper Tribunal at paragraph 46 stated that "equally we do not conclude that the fact that the children had lived in the UK for most of their lives who are being expected to move to a country they do not yet know does not makes that disproportionate. There must be individual consideration and assessment of best interests in each and every case. By contrast with ZH Tanzania, the move to Nigeria in that case from the United Kingdom does not involve separation from a carer or the country of nationality. These decisions to not interfere with the enjoyment of family life on the part of any of the appellant's".

7. The Judge failed to consider the effect of the third appellant being removed with this family unit upon his private as distinct from family life is a further factor tending towards the reasonableness of the third appellant's removal. The Judge also failed to consider the third appellant's parent's temporary student migrant status when assessing the reasonableness of the third appellant's removal. In EA at paragraph 43 it is stated that it is important to recall that all of the appellants may all have been here lawfully but they came to the United Kingdom for temporary purposes with no expectation of being able to remain in the UK. The third appellant happened to be born in the United Kingdom whilst his parents were here for a temporary purpose. The expectation was that they would all return to Nigeria once the first appellant studies were completed. Those who have their families with them during a period of study in the United Kingdom must do so in the light of that expectation of return."

8. The Judge allowed the appellant's appeal under Article 8 rather than paragraph 276ADE holding that the appeal in respect of all appellants should also be allowed in line with the third appellant on human rights grounds. By allowing the third appellant's appeal under article 8 rather than the Immigration Rules the Judge materially erred by failing to identify in the third appellant's case, compelling circumstances not sufficiently recognised under the Immigration Rules of the sort required to ground an arguable case for consideration outside the Immigration Rules in accordance with the case of Rv Ngare v SSHD [2013] (admin). The Judge also erred by failing to have regard to the requirements of paragraph 276ADE is a relevant consideration in the proportionality evaluation. He also materially erred in failing to have regard to the public interest in firm immigration control. Therefore if the decision in relation to the third appellant is erroneous, the decision in respect of the other appellants must fall with it.

The hearing and the parties' submissions

9. At the hearing, Miss Isherwood on behalf of the respondent stated that the appellant's family came to this country in a temporary capacity. They waited until the third appellant was seven years old before making an application for the entire family to live in this country. The Judge failed to consider why the child should not go back with his parents to Bangladesh. There are two elements to paragraph 276ADE. The judge stopped at the first one. There was no identification of the compelling circumstances in the appellant's case for why he cannot return with his family as a family unit. The only exceptional circumstances identified by the Judge was that the third appellant does not speak Bengali and that he has never been to Bangladesh. The third appellant has been to school for four years and as such his needs and social interests is based on his family unit. Even though the education system may be better in the United Kingdom, the third appellant is not a British citizen so he is not entitled to be educated in the United Kingdom. Family units of non-British nationals has not been considered by the judge.

10. The Judge states that the appellant should remain with his parents wherever they may be. Paragraph 29 of ZH Tanzania referrers and the Judge failed to engage with Article 8 as to the compelling circumstances in this case. The appellants could have no expectation that they would be allowed to live in this country for ever. There are also no evidence of difficulties that the family would encounter on their return to Bangladesh.

11. Mr Hossain made the following submissions. Paragraph 26 states that the third appellant has lived in the United Kingdom and it is not reasonable for him to leave this country. The Judge at paragraph 30 mentions exceptional circumstances and therefore has considered the second limb of the immigration rule.

12. Ms Isherwood in reply said that the appellant's representative is indicating today that the third appellant's appeal should be allowed under the Immigration Rules which was not in the appellant's grounds of appeal. There was an error of law and the decision should be set aside.

Did the determination of the First-tier Tribunal involve the making of an error of law?

13. I have considered the determination of First-tier Tribunal Judge, the skeleton argument and the submissions made by the parties as to whether there is an error of law in the determination. Having considered the determination as a whole, I find Judge Moore's consideration of the appellant's appeal in respect of the Immigration Rules and Article 8 of the European Convention on Human Rights is materially flawed.

14. I agree with the respondent that the Judge did not give sufficient reasons for why the third appellant who has just passed the age of seven should not return to Bangladesh with the rest of his family who are in this country on a temporary basis or why it would be unreasonable for him to do so. The agreed facts are that the first appellant, the mother, came to this country in 2006 on a student visa. The first appellant was born very soon after she came to this country. The fourth appellant was also born in this country but the Judge did not take into account they are all nationals of Bangladesh and not British citizens and therefore did not make a fact specific evaluation.

15. The Judge failed to recognise that the Immigration Rules are Article 8 compliant and that it will only be in exceptional circumstances where the appellant should succeed under Article 8 when he cannot succeed under the Immigration Rules. The Judge found that the exceptional circumstances in the appellant's case consist of the appellant not to being able to speak Bangladeshi and the fact that he has never visited Bangladesh and that his education will be fatally compromised. The evidence that the Judge recognised was that the third appellant's father and mother do not speak English or very limited English and converse with the third appellant in Bengali. The Judge failed to take into account that the appellant who has just passed the age of seven years and that his cultural and social identity is derived from his parents and their community. He also failed to take into account at eight years old, his ties to this country are less relevant at this stage of his life.

16. The Judge also took into account irrelevant factors such as the appellant's education would be hindered if he had to return to Bangladesh and that this would ruin his future prospects. He failed to take into account that Bangladesh has educational facilities for children who live in Bangladesh. He also failed to take into account that a non-British child is not entitled or should not have a reasonable expectation that he will be educated to British standards.

17. Although the Judge cited all the relevant case law in respect of the interests of children in the United Kingdom, he failed to take into consideration that he must conduct an individual consideration and assessment of the best interests of the appellant's particular circumstances. He failed to take into account that the appellant's exclusion from the United Kingdom and for him to return to Bangladesh with his family does not involve separation from his parents or siblings which has been held to be the starting point as to the best interests of the children that is to be with both parents and that dependent children will form part of their household will be removed unless there is some reason to the contrary. The judge failed to give cogent reasons for why the third dependent child should not return to Bangladesh with his family. The Judge failed to consider that being removed with his family unit is a factor which goes towards the reasonableness of the third appellant's removal with all his family members.

18. The Judge also failed to consider that the appellants were granted leave to remain in the United Kingdom on a temporary basis and could not have had any legitimate expectation that they could live in this country on a permanent bases unless they complied with the Immigration Rules for further leave to remain. The Judge failed to consider that non-nationals who come to this country to study with their families must know that they will have to return to their home country with their children after the completion of their studies.

19. Finally, the Judge did not allow the appeal under the Immigration Rules but pursuant to Article 8. The grounds of appeal do not seek to challenge his finding that the appellants do not meet the requirements of the Immigration Rules.

20. I find there is a material error of law in the determination and I set it aside in its entirety. The appeal to be reheard in the Upper Tribunal.

Rehearing of the appeal on 16 October 2014 at the Upper Tribunal

21. At the rehearing, there was no oral evidence and I heard submissions from both parties.

22. Mr Yeo on behalf of the appellant relied on his amended skeleton argument and made the following submissions which I summarise. He has provided extra documents in the appellant's bundle at pages 21-22. He also asked me to consider the appellant's brother's letter which he provided at the hearing.

23. Mr Tarlow said that the facts of the case are by and large agreed and he would not seek to cross-examine the witnesses.

24. Mr Yeo in his submissions stated the following which I summarise. The context of this case is different because the appellants have been living in the United Kingdom lawfully and their child, the third appellant, was born in this country. It is accepted that the first second and fourth appellants cannot succeed under the Immigration Rules. The appellants was a normal variation application. He relies on the statutory conditions which are freestanding in Ex1. Paragraph 117A of the amended Nationality Immigration and Asylum Act 2002 where a Court or Tribunal to is required to determine whether a decision made under the Immigration Acts, (a) breaches a person's right to respect for private and family life under article 8 and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. He argued that the Tribunal must have regard to these provisions as it is mandatory as it came effect on 28 July 2014. The provisions apply in any case in which a Court or Tribunal must decide on an Article 8 case and failure to do so would amount to an error of law. He relied on the case of YM Uganda v Secretary of State for the Home Department [2014] EWCA Civ 1292.

25. Mr Yeo referred to the respondents explanatory notes at paragraph 7.6 introduced on 9 July 2012 which state that regard must be had to the seven-year period of residence for children. He referred to paragraph 7.6 "the key test for a non-British citizen child remaining on a permanent bases is the length of residence in the UK of the child-which the rules set out as at least the last seven years, subject to contraveling factors. He referred to the document entitled "grounds of compatibility with Article 8 of the European Convention on Human Rights" which is a statement by the Home Office dated 13 June 2012 which went into further detail. Paragraph 27 states that "the rules deal clearly with how to treat a British citizen and other children in cases where we would otherwise intend to remove their parents and how countervailing factors should weigh in the decision. There are some circumstances where children may be allowed to remain on a permanent basis is around the length of continuous residence of a child in the UK-which we have set at seven years, subject to countervailing factors. We consider that a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would not normally be in the best interests of the child. A period of seven years also echoes a previous policy known as (DP 5/96) under which a child who had accumulated seven years continuous residence in the UK is still referenced by the courts on occasion in policy terms. The respondent did not propose a period of less than seven years as this would enable migrants who entered the United Kingdom on a temporary route (for example a route limited to 5 years the UK) to qualify for settlement if they had brought children with them. The changes are designed to bring consistency and transparency to decision making.

26. Mr Yeo reminded the Court that children born in the United Kingdom will qualify for registration as British citizens after 10 years of residence, whether it is lawful or not pursuant to section 1 (4) of the British Nationality Act 1981. He said that children can also qualify for settlement after seven years of residence, whether lawful or unlawful under paragraph 276 ADE (1) (iv) and the children of such a child can qualify for an extension of leave of 30 months under appendix FM.

27. He argued that this makes sense that children should qualify for indefinite leave to remain before adults, particularly given the children would qualify for full citizenship after 10 years if born in the United Kingdom. He stated that public interest reasons are in their favour in this respect because British taxpayer's resources have been used for the child's education which would otherwise be wasted if the child leaves the UK. He argued that the key test as to whether the removal of child is disproportionate is seven years.

28. He argued that the additional reasonableness test whether the child can return to his home country need not be a particularly high hurdle in the circumstances and given this background. He said that there was no exceptionality threshold or similar to be applied as this application is made under the Immigration Rules.

29. The legitimate aim of the state or public interest does not need to be weighed as reasonable and that it is a simple test subject to the normal rules of statutory interpretation comparable to many other discretionary tests in the Immigration Rules such as "full responsibility" "exclusion undesirable and "adequate".

30. It is that the best interests of the third appellant to remain in his current stable environment where he is receiving a good education and is happy. He has been described as distraught and devastated at the prospect of going to Bangladesh permanently. His wishes and feelings have to be considered. Furthermore the child does not speak or write Bengali and would be disadvantaged in the event of removal to that country. The child has been in this country lawfully since birth as have been his parents and sister.

31. The immigration history of the family does not suggest a deliberate evasion of immigration control in order eventually to use the child as an anchor to attach to the United Kingdom. The family's prior residence was lawful and the parents made a perfectly reasonable and lawful variation application. Both the child and the rest of his family will be impacted and their circumstances should also be considered. The parents have been in the United Kingdom for eight years.

32. The appellant's speak English and are financially independent and their status was not precarious in the sense of "dangerously likely to fall or collapse". The appeal should be allowed under the Immigration Rules, or, failing that, under Article 8 of the European Convention of Human Rights after applying the statutory considerations of Part 5A NIAA 2002.

33. Mr Tarlow in his submissions stated that compelling circumstances must be demonstrated as per the case of Gulshan (Article 8 - new Rules - correct approach) [2013] UKUT 640 (IAC). The appellants came to this country as students and they had no expectation that they could live here forever. The word precarious includes no expectation to remain in this country permanently. The test remains whether it is reasonable for the child to leave the country with his parents. The Secretary of State is responsible for immigration control and even if the child faced difficulties it would still be reasonable for him to return with his entire family to Bangladesh. It is accepted that the family speak English and that they are earning money. Nevertheless their private life has always been precarious as they came to this country as student and student dependents. It is reasonable for the family to return to Bangladesh as a unit.

34. In reply Mr Yeo emphasised that the appellants have been in this country lawfully and that I must consider the statutory considerations and paragraph 117B goes in the appellant's favour.

Findings

35. It is been accepted by Mr Yeo that the first, second, and fourth appellants do not satisfy the Immigration Rules for further leave to remain in the United Kingdom. It is argued that the third appellant does meet the requirements of paragraph 276 ADE. There are two legs to paragraph 276 ADE the first being that the third appellant who about eight years old and under the age of 18, has lived in the United Kingdom for more than seven years and the second being that it would not be reasonable to require him to leave the United Kingdom.

36. The accepted facts are that the first appellant, the third appellant's mother came to this country on a student visa in 2006 and the second and fourth appellants joined her as her dependents. The third appellant was born in this country and is about eight years of age. It was also accepted that the family has been in the United Kingdom lawfully for about eight years. The appellants are not British citizens but citizens of Bangladesh although it was argued on behalf of the third appellant (minor) that he would be entitled to British citizenship after 10 years. That may be the case but he is not a British citizen currently all the way will take this into account in considering proportionality. I have considered all the factors that were brought to my attention for why it would unreasonable for the appellant to return to Bangladesh with his family as a family unit. I also take into account all the submissions made on the third appellant's behalf in this regard.

37. I accept that the appellant has lived in the United Kingdom for more than seven years and therefore satisfies the first limb of paragraph 276 ADE. I find that there are no cogent reasons for why he cannot return to Bangladesh with his family who are all Bangladesh citizens. I take into account his studies in this country and the fact that he must have made friends here. I take into account that he has lived in this country all his life. I find that both his education and friends can be replicated in Bangladesh. There is no suggestion that Bangladesh does not have an education system. The appellant will have a distinct advantage because of the English language skills he has acquired in this country. The evidence is that the third appellant speaks Bengali to his parents and therefore he would not find it difficult to integrate into Bangladeshi society with the assistance of his parents who continue to have ties to Bangladesh and there is no suggestion otherwise. I therefore find that the third appellant does not meet the requirements of the Immigration Rules for further leave to remain as I find it reasonable for him to accompany his parents to Bangladesh.

38. I now consider all the appellants rights under Article 8 of the European Convention on Human Rights which by definition shows that the appellants have failed to succeed under the Immigration Rules but may succeed under the law on Article 8 grounds despite the provisions of the Immigration Rules. A failure to comply with the rules thus remains the starting point of the Article 8 inquiry and not its conclusion.

39. I have also considered the case of Gulshan which states that after applying the requirements of the Immigration Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them. I take this to mean that it will only be in exceptional and or compelling circumstances that a claimant will succeed pursuant to Article 8 when he or she cannot fulfil the requirements of the Immigration Rules. I will now make an assessment of Article 8 applying the criteria established by law. I consider in this regard the Upper Tribunal's observation in MF (Article 8-new rules) Nigeria [2012] 00393 (IAC) to the same effect is endorsed. Izuazu (Article 8 - new rules [2013] UKUT 45.

40. In determining whether the appellant's removal from the United Kingdom would constitute a disproportionate interference with her right to respect for private and family life under Article 8, I have considered each of the following issues, as laid down at paragraph 17 of the speech of Lord Bingham of Cornhill in R v Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27:

1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or family life?

2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

3) If so, is such interference in accordance with the law?

4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

41. The question to be decided is whether the refusal of leave to remain, 'in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8' (Huang v Secretary of State for the Home Department [2007] UKHL 11 ('Huang'), para. 20). In considering this question, I must take into account all factors that that weigh in favour of the refusal of leave, including the desirability of applying a workable, predictable, consistent and fair system of immigration control (Huang, para. 16). Against this, I must take into account the effect that refusal of leave would have on the enjoyment of the appellant's private and family life in her case, bearing in mind the core value that Article 8 of the European Convention seeks to protect, and the fact that '[t]heir family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially' (Huang, para. 18).

42. I have taken into account that from 28 July 2014 section 19 of the Immigration Act 2014 is brought into force: article 3 of the Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820). This amends the Nationality, Immigration and Asylum Act 2002 by introducing a new Part 5A which contains sections 117A, 117B, 117D and 117D. Part 5A only applies where the Tribunal considers article 8(2) ECHR directly

43. Paragraph 135 of R(MM (Lebanon)) v SSHD [2014] EWCA Civ 985 states:
135. Where the relevant group of IRs [immigration rules], upon their proper construction provide a "complete code" for dealing with a person's Convention rights in the context of a particular IR or statutory provision, such as in the case of "foreign criminals", then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code, although reference to "exceptional circumstances" in the code will nonetheless entail a proportionality exercise. But if the relevant group of IRs is not such a "complete code" then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law."

44. I answer the first four questions in Razgar in the affirmative. The only issue in the appeal therefore for me to decide is proportionality. I guide myself that I must make a fact sensitive assessment of the appellants' circumstances and make my own assessment of proportionality. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles. It is obvious that respect for a claimant's family and private life under Article 8 (1) is subject to proportionate and justified interferences in pursuit of a legitimate aim under Article 8(2). (Izuazu)

45. The issue in this appeal to be decided in respect of the third appellant who is a minor is the proportionality of his removal from the United Kingdom with his parents taking his best interests into account. I have also taken into account that in considering an application under European Convention on Human Rights Article 8, the decision maker must take into account the best interests of the children as a primary consideration. It is however a primary" and not "the paramount" consideration.

46. It was argued that it is not proportionate to remove the third appellant, the first and second appellants should be allowed to remain as the third appellant's carers and the fourth appellant aged three should also be allowed to remain with the family. It was also argued that the first and second and fourth respondent's removal would be disproportionate in itself and a breach of their private life as they have been in the United Kingdom for eight years lawfully.

47. It is submitted that that the third appellant has real and significant ties to the community in this country as he has lived here for about eight years continuously and that I should take this into account in my proportionality exercise. I was also asked to take into account that the third appellant is now eight years of age and is receiving an education in this country and is happy. I take into account that the third appellant does not wish to return to Bangladesh and wants to continue with his education here.

48. It is argued that taking the third appellant's best interests into account, it entitles him to live in this country and it also entitles his parents and sibling to remain with him to enjoy their family life in the United Kingdom together. It is trite law that foreign nationals cannot choose to conduct their family life in the United Kingdom.

49. The reasons given for why the third appellant should not be asked to leave the United Kingdom are that after seven years child puts down roots in this country and therefore it would not be reasonable to require him to leave the United Kingdom and go to a country where he has never been. It is a further been argued that it is difficult for him to readjust to Bangladesh because he does not understand the culture or the language in that country.

50. This is not exactly accurate because it is accepted that the third appellant speaks in Bengali to his parents. This demonstrates that he understands the language which will go a long way in ensuring his and his three-year-old sibling will integration into Bangladesh. It is clear that the first and second appellant have ties to Bangladesh and understand the culture of that country and they have not sought to argue otherwise. The third appellant is about eight years of age and the fourth appellant is about three years of age. Both of them can adapt to life in Bangladesh with the help and advice of their parents.

51. The appellants argued that they have been lawfully resident and working in the United Kingdom and are not in breach of immigration law. While I accept that they have not breached immigration rules which goes to their credit, the immigration status of the family has always been precarious because they have been resident in this country on student visas. They could not have had an expectation that they could continue to live in this country permanently unless they were able to fulfil the requirements for further leave to remain pursuant to the Immigration Rules which they have not been able to do.

52. I have considered all these factors in reaching my conclusion. Taking into account all the evidence in this appeal and the arguments submitted by the parties including case law I find that the appellants can be returned to Bangladesh as a family unit. The best interests of the third appellants lies in living with his parents in Bangladesh as a family unit. I find that the fourth appellant is about three years of age and taking his best interests into account, he can also return with his parents to Bangladesh.

53. I find that there are no compelling compassionate or other reasons why the public interest in maintenance of firm and fair immigration control should not prevail.

54. I therefore dismiss the third appellant's appeal pursuant to paragraph 297 ADE. It is been accepted that the first second and fourth appellant do not meet the requirements of the Immigration Rules. I also dismiss all the appellants' appeals pursuant to Article 8 of the European Convention on Human Rights.

Decision

Appeals Dismissed for all four appellants

Signed by

Mrs S Chana

A Deputy Judge of the Upper Tribunal Dated this 5th day of November 2014