JR/10340/2016
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The decision
IAC-FH-CK-V2
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/10340/2016
Field House,
Breams Buildings
London
EC4A 1WR
6 October 2017
The QUEEN
(ON The application OF
[C J L]
Nicanor [B]
Periana [B])
Applicants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE ALLEN
- - - - - - - -
Mr P Turner, instructed by Law Lane Solicitors, appeared on behalf of the Applicants.
Mr V Mandalia, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE ALLEN: The first applicant in this case is a child of 7 at the date of application and the second and third applicants are her maternal grandparents, who applied for entry clearance to visit the sponsors, the first applicant's paternal grandparents, in the United Kingdom and mentioned also as part of the reason for the visit was the fact that the first applicant's parents are in the United Kingdom. I think on her application form they were described as being temporary residents in the United Kingdom. The challenge is to decisions dated respectively 22 July 2016 in respect of the first applicant and 23 July 2016 in respect of the second and third applicants.
2. The position has moved on somewhat in the sense that, as was flagged up in the detailed grounds of defence in March of this year at paragraph 13 it was said that the respondent had withdrawn the earlier refusal decisions made in respect of the second and third applicants.
"13. The Entry Clearance Officer has decided to reconsider the applications made by the second and third applicants. The Entry Clearance Officer will make fresh decisions in due course."
In the circumstances, it was said, this judicial review claim, insofar it concerns them, is academic, and then, in more detail on that in Mr Mandalia's skeleton, that the earlier refusal decisions had been withdrawn on 10 March 2017 following the review of the decision by the Entry Clearance Manager and those decisions had been communicated by email to the second and third applicants.
3. I agree with the submissions in this regard that, as a consequence, the applications for judicial review of the second and third applicants are academic. Of course that was not the case at the stage where the matter was considered by Judge Lindsley when she granted permission on the basis as follows:
"1. It is arguable that the decision is unlawful as it is arguable that insufficient reasoning is contained in the decision to mean that it was lawfully open to the respondent to refuse the visit applications of the second and third applicants on grounds of a false representation."
That of course now, in that their claims are academic, goes out.
"It is arguable that a right of appeal on human rights grounds is not an alternative remedy if the first applicant wishes to vindicate her right to visit the UK in accordance with the Immigration Rules. It is also arguable that the decision to refuse entry clearance to the applicants on the basis of the other aspects of the Immigration Rules is irrational and/or insufficiently reasoned."
4. She then went on to express some concerns about the lack of clarity as to the history of the first applicant's parents' appeal. We now have that and I am grateful for the documentation that has been provided. We have the First-tier decision and we have the decision of the Upper Tribunal also and the position is that they had applied for derivative residence cards in respect of the first applicant's paternal grandparents.
5. Their appeal against the refusal decision was upheld in the First-tier and was then overturned in the Upper Tribunal and there is due to be an oral permission hearing for appeal to the Court of Appeal in November this year.
6. I will move on to the refusal decision in respect of the first applicant and it is right of course, as Mr Turner says, that elements of this decision are no longer applicable in the sense that, for example, where part of the refusal was based on the fact that her grandparents' entry clearance applications had been refused must fall away:
"In light of the fact that the adults with whom you seek to travel do not have permission to enter the UK I am not satisfied that adequate arrangements have been made for your travel to the UK."
Of course now they do have or are able to have permission. Mr Mandalia was able to clarify the position on that, that they would still be able to go and get visas.
7. The decision letter also goes on to refer to the fact that the decision maker was satisfied that the overriding reason for the visit was actually to visit the parents and it is that next paragraph, the first main paragraph on page 69 of the bundle, which seems to me to be of particular relevance here:
"You live with your grandparents (and guardians) in the Philippines where you attend school..."
I should say in passing that I agree that it has not been shown that any form of legal guardianship has been established in this case or de facto parenthood. They are guardians, it seems to me on a proper reading of this, in the sense that they look after her in the Philippines. She has lived with them for most of her life and therefore they are the people who are on a day-to-day basis looking after her.
"However",
the letter goes on to say,
"both of your parents are in the UK and attempting to remain permanently there, having made repeated attempts to do so over a number of years. In previous applications made by you and your grandparents your parents' presence in the UK was not declared. Given this information, I am not satisfied that you are genuinely seeking entry for a limited period as stated by you and that you are likely to seek to remain with them for a longer period, if not permanently. This is particularly true given the previous attempt to hide your parents' presence in the UK. I am therefore not satisfied that you will leave the UK at the end of your visit as stated by you."
8. The decision maker then went on, having refused the application under the Immigration Rules, to consider whether the claim could succeed outside the Rules, hence the reference to exceptional circumstances and whether they existed and the consideration of her best interests as a child.
"I note that your mother and father have made the decision to remain in the UK through choice, albeit without obtaining legal status, and leave you in the Philippines. Whilst I consider Article 8 is engaged I am satisfied that there is nothing to prevent them from returning to the Philippines if they wanted to visit you or establish a family unit and that refusing your application is proportionate and appropriate. It has therefore been decided that there are no exceptional circumstances in your case."
9. As I say, I do not see any basis for arguing, or arguing successfully anyway, that any kind of quasi-parenthood has been established and there is the point that Mr Mandalia identified that the parents gave written permission for their child to travel with the grandparents to the United Kingdom. She was going to be staying with her parents and the plan was that in the United Kingdom the second and third applicants would be staying in a hotel and it seems to me that there is not this "by your own choice" element as suggested by Mr Turner.
10. I think it is an abuse of language, frankly, to suggest as it was by Mr Turner that the implication of the original decision is that somehow the grandparents are trafficking a child into the United Kingdom. The decision does not suggest or imply that that would be the case and nor does the fact that it now has been decided to grant them visas in any sense indicate that, as a consequence, it must follow that the first applicant's application has to succeed. It is necessary of course to bear in mind the point clearly central to this case that we are concerned with a judicial review and not an appeal.
11. As a consequence, what I have to decide is whether the decision made by the Entry Clearance Officer is a rational one or that, given that it is for the applicant who is challenging the decision, it is for her to show that it is an irrational decision and that relevant factors have not been considered or irrelevant factors have been taken into account or on any other basis that it is not a decision to which a reasonable Entry Clearance Officer could come to. It seems to me be wholly rational for the Entry Clearance Officer to take into account, even taking the grandparents' refusal out of the equation, that in light of the situation of the applicant as a child of parents in the United Kingdom who are seeking to remain in the United Kingdom, bearing in mind also the previous failure to mention the parents in the 2015 application, and to conclude that the decision maker was not satisfied that she would leave the United Kingdom at the end of the visit as stated by her.
12. It seems to me also to be entirely rational thereafter to have gone on to consider the situation outside the Rules and to conclude, bearing in mind the section 55 responsibilities of the decision maker, that other choices existed and Mr Mandalia referred to the possibility of one grandparent or the other or both indeed deciding after all to remain in the Philippines and look after the first applicant. Alternatively, as is mentioned in the decision, and it is the rationality of that with which of course I am concerned, it is made clear that there is nothing to prevent the first applicant's parents from returning to the Philippines if they wanted to visit her or establish a family unit. Again, I see that as an entirely rational and proper response.
13. There is a further issue which was touched on in the detailed grounds, in the skeleton argument and in the submissions by Mr Mandalia today and that is the fact that the first applicant has all along had a right of appeal against this decision and this was flagged up by Judge Lindsley, suggesting that it was arguable that the opportunity to make a human rights appeal against a decision was not the same as the right to challenge the decision under the Immigration Rules. I remind myself that it is clearly established that judicial review is very much a remedy of last resort.
14. The opportunity existed for the applicant to bring an appeal against the decision and have the factual issues tested in an appeal and after all the approach, as it has developed in hearing Article 8 appeals in respect of cases where there has been a refusal under the Immigration Rules, is to examine whether there has been compliance with the Immigration Rules as part of the proportionality evaluation and so there would in an appeal have been an evaluation of the factual situation on the basis of the kind of more detailed approach which is simply not appropriate in a judicial review. As I say, all I can be concerned with here is the rationality or otherwise of the decision that has been made.
15. So it seems to me, bringing these matters together, that, putting the latter matter first, judicial review was not an appropriate course of action to follow in this case because the applicant had a right to a statutory appeal which on her behalf it was chosen not to exercise but that in any event I see no irrationality or other public law unlawfulness in the decision of the Entry Clearance Officer in this case and so for all these reasons this application for judicial review is refused.
Costs
16. I have not had any submissions on costs or schedules or anything so I will say no more than that the applicants are to pay the Secretary of State's reasonable costs to be assessed if not agreed.
Application for Permission to appeal to the Court of Appeal
17. I refuse the application. ~~~~0~~~~
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/10340/2016
Field House,
Breams Buildings
London
EC4A 1WR
6 October 2017
The QUEEN
(ON The application OF
[C J L]
Nicanor [B]
Periana [B])
Applicants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE ALLEN
- - - - - - - -
Mr P Turner, instructed by Law Lane Solicitors, appeared on behalf of the Applicants.
Mr V Mandalia, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE ALLEN: The first applicant in this case is a child of 7 at the date of application and the second and third applicants are her maternal grandparents, who applied for entry clearance to visit the sponsors, the first applicant's paternal grandparents, in the United Kingdom and mentioned also as part of the reason for the visit was the fact that the first applicant's parents are in the United Kingdom. I think on her application form they were described as being temporary residents in the United Kingdom. The challenge is to decisions dated respectively 22 July 2016 in respect of the first applicant and 23 July 2016 in respect of the second and third applicants.
2. The position has moved on somewhat in the sense that, as was flagged up in the detailed grounds of defence in March of this year at paragraph 13 it was said that the respondent had withdrawn the earlier refusal decisions made in respect of the second and third applicants.
"13. The Entry Clearance Officer has decided to reconsider the applications made by the second and third applicants. The Entry Clearance Officer will make fresh decisions in due course."
In the circumstances, it was said, this judicial review claim, insofar it concerns them, is academic, and then, in more detail on that in Mr Mandalia's skeleton, that the earlier refusal decisions had been withdrawn on 10 March 2017 following the review of the decision by the Entry Clearance Manager and those decisions had been communicated by email to the second and third applicants.
3. I agree with the submissions in this regard that, as a consequence, the applications for judicial review of the second and third applicants are academic. Of course that was not the case at the stage where the matter was considered by Judge Lindsley when she granted permission on the basis as follows:
"1. It is arguable that the decision is unlawful as it is arguable that insufficient reasoning is contained in the decision to mean that it was lawfully open to the respondent to refuse the visit applications of the second and third applicants on grounds of a false representation."
That of course now, in that their claims are academic, goes out.
"It is arguable that a right of appeal on human rights grounds is not an alternative remedy if the first applicant wishes to vindicate her right to visit the UK in accordance with the Immigration Rules. It is also arguable that the decision to refuse entry clearance to the applicants on the basis of the other aspects of the Immigration Rules is irrational and/or insufficiently reasoned."
4. She then went on to express some concerns about the lack of clarity as to the history of the first applicant's parents' appeal. We now have that and I am grateful for the documentation that has been provided. We have the First-tier decision and we have the decision of the Upper Tribunal also and the position is that they had applied for derivative residence cards in respect of the first applicant's paternal grandparents.
5. Their appeal against the refusal decision was upheld in the First-tier and was then overturned in the Upper Tribunal and there is due to be an oral permission hearing for appeal to the Court of Appeal in November this year.
6. I will move on to the refusal decision in respect of the first applicant and it is right of course, as Mr Turner says, that elements of this decision are no longer applicable in the sense that, for example, where part of the refusal was based on the fact that her grandparents' entry clearance applications had been refused must fall away:
"In light of the fact that the adults with whom you seek to travel do not have permission to enter the UK I am not satisfied that adequate arrangements have been made for your travel to the UK."
Of course now they do have or are able to have permission. Mr Mandalia was able to clarify the position on that, that they would still be able to go and get visas.
7. The decision letter also goes on to refer to the fact that the decision maker was satisfied that the overriding reason for the visit was actually to visit the parents and it is that next paragraph, the first main paragraph on page 69 of the bundle, which seems to me to be of particular relevance here:
"You live with your grandparents (and guardians) in the Philippines where you attend school..."
I should say in passing that I agree that it has not been shown that any form of legal guardianship has been established in this case or de facto parenthood. They are guardians, it seems to me on a proper reading of this, in the sense that they look after her in the Philippines. She has lived with them for most of her life and therefore they are the people who are on a day-to-day basis looking after her.
"However",
the letter goes on to say,
"both of your parents are in the UK and attempting to remain permanently there, having made repeated attempts to do so over a number of years. In previous applications made by you and your grandparents your parents' presence in the UK was not declared. Given this information, I am not satisfied that you are genuinely seeking entry for a limited period as stated by you and that you are likely to seek to remain with them for a longer period, if not permanently. This is particularly true given the previous attempt to hide your parents' presence in the UK. I am therefore not satisfied that you will leave the UK at the end of your visit as stated by you."
8. The decision maker then went on, having refused the application under the Immigration Rules, to consider whether the claim could succeed outside the Rules, hence the reference to exceptional circumstances and whether they existed and the consideration of her best interests as a child.
"I note that your mother and father have made the decision to remain in the UK through choice, albeit without obtaining legal status, and leave you in the Philippines. Whilst I consider Article 8 is engaged I am satisfied that there is nothing to prevent them from returning to the Philippines if they wanted to visit you or establish a family unit and that refusing your application is proportionate and appropriate. It has therefore been decided that there are no exceptional circumstances in your case."
9. As I say, I do not see any basis for arguing, or arguing successfully anyway, that any kind of quasi-parenthood has been established and there is the point that Mr Mandalia identified that the parents gave written permission for their child to travel with the grandparents to the United Kingdom. She was going to be staying with her parents and the plan was that in the United Kingdom the second and third applicants would be staying in a hotel and it seems to me that there is not this "by your own choice" element as suggested by Mr Turner.
10. I think it is an abuse of language, frankly, to suggest as it was by Mr Turner that the implication of the original decision is that somehow the grandparents are trafficking a child into the United Kingdom. The decision does not suggest or imply that that would be the case and nor does the fact that it now has been decided to grant them visas in any sense indicate that, as a consequence, it must follow that the first applicant's application has to succeed. It is necessary of course to bear in mind the point clearly central to this case that we are concerned with a judicial review and not an appeal.
11. As a consequence, what I have to decide is whether the decision made by the Entry Clearance Officer is a rational one or that, given that it is for the applicant who is challenging the decision, it is for her to show that it is an irrational decision and that relevant factors have not been considered or irrelevant factors have been taken into account or on any other basis that it is not a decision to which a reasonable Entry Clearance Officer could come to. It seems to me be wholly rational for the Entry Clearance Officer to take into account, even taking the grandparents' refusal out of the equation, that in light of the situation of the applicant as a child of parents in the United Kingdom who are seeking to remain in the United Kingdom, bearing in mind also the previous failure to mention the parents in the 2015 application, and to conclude that the decision maker was not satisfied that she would leave the United Kingdom at the end of the visit as stated by her.
12. It seems to me also to be entirely rational thereafter to have gone on to consider the situation outside the Rules and to conclude, bearing in mind the section 55 responsibilities of the decision maker, that other choices existed and Mr Mandalia referred to the possibility of one grandparent or the other or both indeed deciding after all to remain in the Philippines and look after the first applicant. Alternatively, as is mentioned in the decision, and it is the rationality of that with which of course I am concerned, it is made clear that there is nothing to prevent the first applicant's parents from returning to the Philippines if they wanted to visit her or establish a family unit. Again, I see that as an entirely rational and proper response.
13. There is a further issue which was touched on in the detailed grounds, in the skeleton argument and in the submissions by Mr Mandalia today and that is the fact that the first applicant has all along had a right of appeal against this decision and this was flagged up by Judge Lindsley, suggesting that it was arguable that the opportunity to make a human rights appeal against a decision was not the same as the right to challenge the decision under the Immigration Rules. I remind myself that it is clearly established that judicial review is very much a remedy of last resort.
14. The opportunity existed for the applicant to bring an appeal against the decision and have the factual issues tested in an appeal and after all the approach, as it has developed in hearing Article 8 appeals in respect of cases where there has been a refusal under the Immigration Rules, is to examine whether there has been compliance with the Immigration Rules as part of the proportionality evaluation and so there would in an appeal have been an evaluation of the factual situation on the basis of the kind of more detailed approach which is simply not appropriate in a judicial review. As I say, all I can be concerned with here is the rationality or otherwise of the decision that has been made.
15. So it seems to me, bringing these matters together, that, putting the latter matter first, judicial review was not an appropriate course of action to follow in this case because the applicant had a right to a statutory appeal which on her behalf it was chosen not to exercise but that in any event I see no irrationality or other public law unlawfulness in the decision of the Entry Clearance Officer in this case and so for all these reasons this application for judicial review is refused.
Costs
16. I have not had any submissions on costs or schedules or anything so I will say no more than that the applicants are to pay the Secretary of State's reasonable costs to be assessed if not agreed.
Application for Permission to appeal to the Court of Appeal
17. I refuse the application. ~~~~0~~~~