THE IMMIGRATION ACTS. On 14 July 2016 On 2 August 2016 Before. Upper Tribunal Judge Gill. Between. And S.O. J.D. (ANONYMITY ORDER MADE)

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1 Upper Tribunal (Immigration and Asylum Chamber) Appeal numbers: IA/36308/2014 THE IMMIGRATION ACTS Heard at: Field House Decision promulgated On 14 July 2016 On 2 August 2016 Before Upper Tribunal Judge Gill Between The Secretary of State for the Home Department Appellant And S.O. J.D. (ANONYMITY ORDER MADE) Respondents ANONYMITY ORDER Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) and given that these proceedings involve a minor child, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Respondents, referred to in the body of this decision as the claimants. Representation: For the appellant: For the respondent: Mr E Tufan, Senior Home Office Presenting Officer. Mr J H Trumpington, of Counsel, instructed by Immigration & Legal Advisory Services CROWN COPYRIGHT 2016

2 Decision and Directions 1. The Secretary of State has been granted permission to appeal the decision of Judge of the First-tier Tribunal I M Scott who, in a decision promulgated on 7 December 2015 following a hearing on 6 October 2015, allowed the appeals of Ms S.O. (hereafter Ms O) and her son, Master J.D. (hereafter JD ) (together the claimants ), against decisions of the respondent of 31 August 2014 to remove them from the United Kingdom made under s.10 of the Immigration and Asylum Act 1999 (the 1999 Act ). 2. The claimants are nationals of Nigeria. Ms O was born on [ ] She arrived in the United Kingdom as a visitor on 25 December 2005 at the age of 27 years and overstayed. JD was born in the United Kingdom on [ ] On 10 th March 2014, Ms O applied for leave to remain on human rights grounds with JD as her dependant. The application was refused on 1 st April 2014 with no right of appeal. Judicial review proceedings were commenced. The proceedings were resolved on the basis that the Secretary of State would reconsider the application and, if it were decided to maintain the refusal decision, would also issue a notice to remove the claimants, thereby giving rise to a right of appeal. On 13 August 2014, the Secretary of State decided to maintain the refusal decision and gave directions for the claimants removal from the United Kingdom. The reasons for refusal are set out in a letter of the same date. The legal framework 3. Before turning to the judge's decision, it is appropriate to set out the provisions of s.117a and s.117b of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act ) and para 276ADE of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the Rules ). 4. Section 117A and s.117b of the 2002 Act provide: 117A Application of this Part (1) This Part applies where a court or tribunal 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 (2) In considering the public interest question, the court or tribunal must (in particular) have regard (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), the public interest question means the question of whether an interference with a person s right to respect for private and family life is justified under Article 8(2). 117B Article 8: public interest considerations applicable in all cases (1) The maintenance of effective immigration controls is in the public interest. (2) It is in the public interest, and in particular in the interests of the economic wellbeing of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English 2

3 (a) (b) are less of a burden on taxpayers, and are better able to integrate into society. (3) It is in the public interest, and in particular in the interests of the economic wellbeing of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons (a) (b) are not a burden on taxpayers, and are better able to integrate into society. (4) Little weight should be given to (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person s immigration status is precarious. (6) 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. 5. The version of para 276ADE(1) that was in force as at the date of the decision and the date of the hearing before the judge provided, insofar as relevant, as follows: 276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: (i) (ii) (iii) (iv) (v) (vi) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and has made a valid application for leave to remain on the grounds of private life in the UK; and ; or is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or ; or subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant s integration into the country to which he would have to go if required to leave the UK The judge s decision 6. It was not suggested before the judge that the claimants satisfied the requirements of Appendix FM or that Ms O satisfied the requirements of para 276ADE(1). 3

4 7. Before the judge, reliance was placed upon the position of JD under para 276ADE(1) (iv), i.e. that he was under the age of 18 years, had lived in the UK for 7 years and it would be unreasonable to expect him to leave the UK. 8. Before the judge, JD s private life claim included his relationship with his two cousins. Ms O and JD lived with Ms O's sister and her daughter, S. Ms O's younger brother also lived in the UK with his wife and two children, aged 5 years and 6 years. 9. The judge heard oral evidence from Ms O and her sister who he found credible. The evidence was that Ms O and JD see Ms O's brother and his family at least twice a week. The four cousins (i.e. including JD) have all grown up together. Ms O and JD are supported by Ms O's siblings. Ms O's parents still live in Lagos but she has no contact with them because they disapprove of her divorce from JD s father, for religious reasons. The judge heard evidence that Ms O did not work in Nigeria. She would not be able to provide for herself and JD in Nigeria. There is no one to help them. Ms O is estranged from her parents and would have no home or accommodation in Nigeria. 10. The judge considered whether it would be reasonable to expect JD to leave the UK at paras of his decision. He found that it would not be reasonable to expect JD to leave the UK and therefore that JD satisfied the requirements of para 276ADE(1)(iv). Paras read as follows: 24. Instead, reliance was placed upon the position of [JD] under paragraph 276ADE (1) (iv). As noted, he is under the age of 18 years and had resided in the United Kingdom for 7 years before the date of application. The question, therefore, is whether it would be reasonable to expect him to leave the United Kingdom. 25. In answering that question, regard must be had, as a primary consideration, to the best interests, not just of [JD] himself, but also of his cousin [S], as required by section 55 of the 2009 Act. 26. I find that it is in [JD] s best interests to remain in the care of his mother, the appellant, as he is only eight years old, has been cared for by her since birth and has no contact with his father. It is also in his best interests to remain in the family unit which he and his mother have formed with his aunt and his cousin [S], and to continue his education in the United Kingdom. I accept that [JD] and [S] have formed a particularly strong bond, having been brought up together for the last eight years, virtually the whole of [JD] s life. Their relationship is essentially that of brother and sister. They share the same interests and attend the same school where they are getting on well. 27. It is also relevant that [JD] has spent his entire life in the United Kingdom and has never left the country. In particular, he has never been to Nigeria and has no connection with that country apart from his nationality. 28. On the other side of the balance, it must be borne in mind that [JD] and his mother are not British citizens and that neither of them has had any leave to remain here since the appellant s visit visa expired. That, however, is not [JD] s fault. He had no choice in the matter and is not to be blamed for his birth, and subsequent residence, in the United Kingdom. 29. The respondent s decision means that [JD] and his mother would be removed together. The respondent points out that there is a functioning education system in Nigeria, that English is the official language there and that the appellant lived in that country until the age of 27 so that she would be able to help [JD] adjust to the different culture and customs. 4

5 30. The respondent also says that the appellant would be able to provide for their maintenance and accommodation but, on the evidence, the reality is that they face destitution in Nigeria. The appellant has never worked there and has no job. They would have no accommodation and no obvious way of securing any. The only family members left in Nigeria are the appellant s parents, but they have disowned her because of her divorce so that there is no-one in Nigeria to help or support them. On the evidence, I find that the prospects for [JD] s future in Nigeria are bleak. 31. Balancing all these factors, I have come to the conclusion that it would not be reasonable to expect [JD] to leave the United Kingdom, with the result that he satisfies the requirements of paragraph 276ADE (1) (iv). 11. The judge then considered the position of Ms O outside the Rules, under Article 8, at paras At para 37, he applied s.117b(1)-(6) of the 2002 Act. I now quote paras of the judge s decision insofar as relevant: Article 8 ECHR 32. It is appropriate now to consider the position of the appellant under Article 8 of the ECHR outside the Immigration Rules because a possible result of my finding that Jayden satisfies paragraph 276ADE (1) (iv) is that mother and son will be separated by her removal from the United Kingdom while he is entitled to remain. 33. There is no doubt that family life exists between the appellant and Jayden and that the appellant has a strong private life with her sister, with whom they both live, as well as with her brother and his family. 34. In considering Article 8, I adopt the approach set out in the House of Lords case of Razgar [2004] UKHL 27 in which Lord Bingham, at paragraph 17, posed five questions which have to be addressed: 35. I have no difficulty in finding that the first four Razgar questions fall to be answered in the affirmative. The remaining question concerns proportionality, in considering which I must balance the public interest against the private rights of the appellant and the other family members concerned. 36. Public interest considerations which must be taken into account are set out in section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) which is in the following terms:- (1) (2) (3) (4) (5) (6) 37. As regards those considerations:- (1) As well as noting the public interest in maintaining effective immigration controls, I remind myself that the State has the right to control entry to its territory and 5

6 that Article 8 does not confer a right to choose where private and family life is to be established. (2) The appellant speaks English. (3) The appellant is financially independent. As well as being accommodated by her sister, she is supported by her and by their younger brother. (4) The private life upon which the appellant seeks to rely with her sister and other family members can be accorded little weight because it has been established since 2007 by which time the appellant no longer had any lawful basis for being in the United Kingdom. No question of a relationship with a qualifying partner arises. (5) This does not apply because the appellant s presence in the United Kingdom is unlawful and not merely precarious. (6) This consideration goes to the heart of the matter. There is no doubt that the appellant has a genuine and subsisting parental relationship with Jayden, who is a qualifying child in terms of section 117D (1) (b), and I have found that it would not be reasonable to expect him to leave the United Kingdom. It follows that the public interest does not require the appellant s removal. 38. The result is that the appellant s right to respect for her family life under Article 8 of the ECHR is not outweighed by the public interest and, therefore, that the respondent s decision is disproportionate. 12. The judge therefore allowed JD s appeal under the Immigration Rules and Ms O's appeal on human rights grounds (Article 8). The Secretary of State's grounds 13. The Secretary of State's grounds may be summarised as follows: i. The judge s finding that it would be unreasonable for JD to leave the UK was irrational or wrong in law and inadequately reasoned. ii. iii. The judge failed to make any finding as to why Ms O was unable to secure herself employment or find employment in Nigeria. There was no evidence that she was unfit to work. In any event, no reasons were put forward as to why the financial support that was being provided by Ms O's siblings could not continue if the claimants were to return to Nigeria. The judge's finding that it would be unreasonable to expect JD to leave the UK infected his assessment of Ms O's Article 8 claim outside the Rules. Submissions 14. Upon commencing my list on the hearing day, I drew Mr Trumpington s attention to the recent judgment of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705, to the effect that wider public interest considerations must be taken into account when applying the reasonableness criterion in para 276ADE(1)(iv). 15. Mr Trumpington submitted that the judge had taken into account the various public interest considerations in s.117b(1)-(6) at paras 28 and 36 of the decision. He submitted that no other public interest considerations other than those considered by 6

7 the judge at para 28 were relevant or material because: (i) Ms O had never committed any criminal offences; (ii) she has never worked; and (iii) she has been supported by her siblings. He submitted that the most powerful aspect of this case was the fact that JD and his cousin, S, daughter of Ms O's sister, have lived together all of their lives in one family unit. 16. Mr Trumpington informed me that there was little information about the precise financial support provided by Ms O's siblings to her. If the claimants were to be removed to Nigeria, the rent paid by Ms O's for her accommodation would remain the same. Her utility bills would not be halved. Any savings in the form of pocket money provided to Ms O would not be sufficient to support her and JD in Nigeria. Ms O's sister would have to pay for childcare. 17. Mr Trumpington accepted that it was for the claimant to establish that financial support to them in the UK could not continue. However, he submitted that the judge dealt with the issue of reasonableness on such evidence as was before him. He had evidence that the claimants were being accommodated and maintained in a twobedroom flat and that Ms O was proving child care for her sister. Thus, he must have assumed that any savings would not be substantial. The judge found that Ms O and JD would be destitute in Nigeria. It was therefore implicit that he accepted that there would not be sufficient financial support available to the claimants from Ms O s siblings. 18. I referred Mr Trumpington to para (6) of the head note in AM (2.117B) Malawi [2015] UKUT 0260 (IAC) and paras 58 and 60 of EV (Philippines) and others v SSHD [2014] EWCA Civ Mr Trumpington accepted that the judge erred when he said that the claimants were financially independent. In making this finding, he must have been referring to the fact that they were not claiming benefits. He submitted that, as the judge was aware that JD was accessing state education, he must have taken into account that he was doing so at public expense. He implicit took this into account at paras 36 and 37 of the decision. Assessment 20. The Court of Appeal recently delivered its judgment in MA (Pakistan). The judge did not have the benefit of the judgment in MA (Pakistan). However, it is clear from MA (Pakistan) that public interest considerations must be taken into account when assessing whether it is reasonable for a child to leave the UK under para 276ADE(1) (iv) of Appendix FM. It was therefore necessary for the judge to take into account public interest considerations, including those set out at s.117b of the 2002 Act in reaching his finding that it was unreasonable for JD to leave the UK. 21. I reject Mr Trumpington s submission that the judge had nevertheless taken into account the relevant public interest considerations at paras 28, 36 and 37, for the following reasons: i) At para 28, the judge referred to the fact that neither Ms O and JD had leave to remain since Ms O's visa expired. However, it is clear from the second and third sentences of para 28 that the judge effectively proceeded to exclude this factor 7

8 his assessment of reasonableness. He therefore left out of account the immigration background in reaching his finding on reasonableness. ii) At paras 36 and 37, the judge considered the Article 8 claim of Ms O outside the Rules, having already reached his finding, at para 31, that it would not be reasonable to expect JD to leave the UK. This is plain not only from the structure of the judge's decision but also his reasoning at paras in relation to JD and paras in relation to Ms O. Indeed, there is nothing at all in his application, at para 37, of the public interest considerations listed in s.117b which he set out in the immediately preceding paragraph (para 36) that shows that he took into account any public interest considerations in relation to JD. To the contrary, it is plain from, for example, from paras 37(2)-(4) in particular, that he focused on assessing the public interest considerations only insofar as they were relevant in relation to Ms O s Article 8 claim outside the Rules. Paras 37(2)-(4) simply cannot be read in any other way. 22. I do not accept Mr Trumpington s submission that no other public interest considerations other than those considered by the judge at para 28 were relevant. In the first place, as I have said above, para 28 shows that the judge did not in fact take into account the immigration background. This is because he effectively discounted the immigration background because he considered that the immigration status of Ms O and JD was not JD s fault and that he should not therefore be blamed for his birth and subsequent residence in the UK. Of course, there is no question of any blame being apportioned to JD. Nevertheless, MA (Pakistan) establishes that the fact that Ms O's and JD s residence has been unlawful, save for the period covered by Ms O's visit visa, is a relevant consideration when assessing reasonableness under para 276ADE(1)(iv). 23. At first sight, it may seem harsh that a young child who has had no control over the place of his birth or where he is brought up and who has accessed state education at public expense not by his own choice but because his parent or parents have put him in the position of doing so should have the fact that he is accessing state education at public expense taken into account in reaching a decision as to whether it is reasonable to expect him to leave the UK. However, prior to the amendment of the Rules on 9 July 2012 and the introduction of para 276ADE, judges reached a view as to whether it is reasonable for a child to leave the UK without taking account of the public interest but it was then necessary to proceed to perform the balancing exercise taking proper account of the public interest to decide whether the decision was disproportionate. The only difference now is that the balancing exercise forms part of the assessment of reasonableness; it is no longer a separate step in the analysis. Whilst it may be counter-intuitive to take account of public interest considerations in deciding whether it is reasonable for a child to leave the UK, there is no real difference. Whereas previously the public interest was taken into account to decide whether a decision is disproportionate having made a finding on reasonableness, it is now taken into account in deciding whether it is reasonable for a child to leave the UK. If it were not so, the public interest would be left out of account completely. This would be contrary to the previous approach, contrary to s.117a(2)(a) and cannot have been intended by Parliament. 24. I am satisfied that the judge did fail to take account of the fact that JD is accessing state education at public expense in reaching his finding that it would not be 8

9 reasonable for him to leave the UK. In doing so, he failed to take into account a material consideration. 25. Furthermore, it is also clear from MA (Pakistan) that the public interest considerations in s.117b(4) should also have been taken into account in assessing the reasonableness of JD leaving the UK. This means that the judge should have attached little weight to any private life established by JD since it was established whilst his status was unlawful. The judge did not do so. Although s.117b(4) states that little weight is to be given to such private life, this is not a fixity. There is some room, albeit limited, to calibrate the amount of weight that is given to JD s private life to take account of the fact that JD established his private life in the UK through no fault of his own. To do so would not amount to discounting the public interest considerations in JD s case, as the judge effectively did, but calibrating the application of s.117b(4) according to the individual circumstances provided that overall little weight given to his private life. However, the judge did not take that approach. It is plain that he made a positive decision not to weigh any public interest considerations against JD s circumstances in order to reach his finding that it would not be reasonable to expect JD to leave the UK. 26. In summary, therefore, I am satisfied that the judge erred in law in reaching his finding that it would not be reasonable to expect JD to leave the UK by failing to take into account relevant public interest considerations. He failed to assess the strength of the public interest on account of the following considerations and weigh them in assessing the reasonableness criterion: (i) (ii) (iii) JD s immigration background. The fact that JD is accessing education at state expense and will continue to do so if allowed to remain. That JD s private life was established whilst his immigration status was unlawful (s.117b(4)) 27. Each of these errors is material. Although I recognise that the strength of the instant case is that JD and his cousin, S, have grown up together in one family unit, it cannot be said, in my judgment, that it is clear that, on the materials before the judge, any rational Tribunal must have come to the same conclusion if each of the errors had not been made. In the alternative, the combined effect of the errors is material. 28. Mr Trumpington submitted that Ms O has never committed any criminal convictions or worked in the UK. These facts cannot render immaterial the errors made by the judge by failing to take into account public interest considerations described above in assessing reasonableness under para 276ADE(1)(iv). 29. Accordingly, the judge s decision that JD satisfied the criteria in para 276ADE(1) falls to be set aside. 30. It is plain from para 37(6) of the judge's decision that he relied upon his finding that it would not be reasonable to expect JD to leave the UK in order to reach his finding, in assessing Ms O's Article 8 claim outside the Rules, that the decision to remove her is 9

10 disproportionate. It is plain that this was material to his decision on her Article 8 claim outside the Rules. 31. In my judgment, the judge also made two other errors of law, which of which were material, in assessing Ms O's Article 8 claim outside the Rules, as follows: (i) (ii) As Mr Trumpington accepted, the judge erred when he found that Ms O was financially independent. There was simply no evidence about her financial circumstances at all before him. Mr Trumpington submitted that the judge must have been referring to the fact that the claimants did not claim benefits. However, the mere fact that the claimants were not receiving benefits does not mean that they were financially independent if, for example, the result is that they are living below a minimum threshold. The judge considered Ms O's Article 8 claim outside the Rules without taking into account the fact that she did not qualify for leave on the basis of her private life under para 276ADE(1). In other words, he failed to consider her claim through the lens of the Rules : paras 39 and 40 of the judgment of Sales LJ in SSHD v AJ (Angola) [2014] EWCA Civ I am therefore satisfied that the judge made three errors of law in assessing Ms O's Article 8 claim outside the Rules, as described above. I am further satisfied that each of these errors is material. Again, although I recognise that the strength of the instant case is that JD and S have grown up together in one family unit, it cannot be said, in my judgment, that it is clear that, on the materials before the judge, any rational Tribunal must have come to the same conclusion if each of the errors had not been made. In the alternative, the combined effect of the three errors is material. 33. For all of the above reasons, I set aside the decision of Judge Scott to allow JD s appeal under the Rules and Ms O's appeal outside the Rules on the basis of Article 8. His summary of the evidence he heard, at paras of his decision, shall stand as a record of the evidence given to the First-tier Tribunal. 34. In the majority of cases, the Upper Tribunal when setting aside the decision will be able to re-make the relevant decision itself. However, the Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal at para 7.2 recognises that it may not be possible for the Upper Tribunal to proceed to re-make the decision when it is satisfied that: (a) (b) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party s case to be put to and considered by the Firsttier Tribunal; or the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 35. In my judgment, this case falls within para 7.(b). In addition, given that the claimants won their appeals before the First-tier Tribunal and having regard to the Court of Appeal s judgment in JD (Congo) & Others [2012] EWCA Civ 327, I am of the view that a remittal to the First-tier Tribunal is the right course of action. 10

11 36. Given that the main aspect of JD s case is his relationship with his cousin, S, the judge considering JD s appeal under para 276ADE should do so by considering (amongst other matters) whether his relationship with S amounts to family life because this will inform the balancing exercise that must be performed in weighing the public interest considerations against JD s circumstances to reach a finding as to whether it is reasonable to expect JD to leave the UK. In addition, the claimants should be ready to address the issue of financial independence beyond JD accessing state education, for example, access to the health services, as well as the availability of financial support for the claimants from Ms O s sister and brother either for the foreseeable future or until Ms O obtains employment. Notice of Decision The decision of the First-tier Tribunal involved the making of errors on points of law such that the decision to allow JD s appeal under the Rules and Ms O's appeal outside the Rules is set aside. This appeals are remitted to the First-tier Tribunal for the decision to be re-made on the merits on all issues by a judge other than Judge of the First-tier Tribunal I M Scott. Signed Date: 31 July 2016 Upper Tribunal Judge Gill 11