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Caselaw

New ruling for Article 8 family immigration claims

Posted by Ilham Malik on May 10, 2016

PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC)

This case concerns the decision of the Upper Tribunal (Immigration and Asylum Chamber) (UT) following the grant of permission to appeal the decision of the First Tier Tribunal (Immigration and Asylum Chamber) (FtT) by the Appellants.

 

Brief facts and Chronology

The Appellants were a Sri Lankan family who first entered the UK on 19/01/05. The First Appellant (the father), was granted entry clearance as a student and his wife and his son aged 3 (Second and Third Appellant’s respectively), were granted entry clearance as his dependants.

The Appellants became overstayers in the UK in February 2010. On 12/02/13, an application was submitted, by the Appellants, for further leave to remain on the basis of their private and family life under Article 8 of the European Conventions of Human Rights (ECHR). This application was refused by the Secretary of State for the Home Department (the SSHD) on 30/04/13.  The SSHD maintained her refusal in a further reconsideration decision dated 23/08/14.

The Appellants appealed the decisions to the First Tier Tribunal (FtT). The FtT noted the Third Appellant had been in the UK for over 10 years but was satisfied that his best interests were safeguarded by relocation to Sri Lanka as a family unit. No exceptional reasons existed and therefore no interference with their right to respect for family life. Although the FtT accepted there would be interference with the private life of the Appellants, specific findings that First Appellant had not paid income tax or national insurance on taxable income (earned as a consultant) and that Third Appellant “has been educated at public expense when not entitled …..” resulted in the conclusion that any such interference would be proportionate.

Appellants’ grounds for permission to appeal the decision of the FtT

The appeals were dismissed on 15/01/15 and the Appellant’s sought permission to appeal the decision of the FtT on the grounds that it had failed to give adequate consideration of the Third Appellant’s life and circumstances, while focusing excessively on his parents, (the First and Second Appellants). It was also argued that the FtT had failed to  assess the position of the Third Appellant first as required by virtue of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended).

Decision of the UT on the application for permission to appeal

Permission to appeal was granted and on 29/09/15 the matter came before an Upper Tribunal panel of judges. The following errors of law by the FtT were identified:

  1. A clear misdirection of law in the formulation of the misconceived criterion of “exceptional reasons” referred to when considering paragraph 276ADE (iv) in relation to entire FtT decision.
  1. Procedural unfairness in the FtT making, without evidential foundation, an adverse finding affecting three Appellants arising out of the First Appellant’s failure to pay taxes or national insurance nor affording the First Appellant an opportunity respond to these findings during the course of the hearing.

Rather than substitute its own decision, the UT re-listed the case for further argument and/or evidence before the same panel of judges. This was heard on 26/11/15 and 19/01/16.

Issues before the UT at the substantive hearing

The UT considered the issues to be as follows:

  1. Whether the rights of the third Appellant [the son] should have been considered first.
  1. The applicability of the reasonableness test referred to in paragraph 276 ADE (1)(iv) of the Immigration Rules (the Rules) as follows:

“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 the application the Applicant:

(iv) 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”

Upper Tribunal’s determination

Issue 1

In respect of the first issue, the court held that there was no requirement, either in legislation or in the Immigration Rules, obligating the Respondent or the FtT (where the hearing are co-joined), to determine the claim of the child first or in isolation of his parents.

The court noted that “In circumstances where the claims of several family members coincide, it would be artificial and unrealistic to determine them on their individual merits, in a rigid sequence and in insulated packages, without reference to the other claims.”

As such any attempt to sever the Third Appellant’s claim from First and Second Appellants would be a breach of the duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”) which has been construed as requiring a properly informed evaluation of all material facts and considerations in assessing a child’s best interests as set out in JO and Others (section 55 duty) [2014] UKUT 552 (IAC).

Issue 2

In respect of the second issue the court noted that given the fact that the Third Appellant had satisfied the continuously residence requirement of paragraph 276 ADE(1)(iv) of the Rules and therefore could only secure the grant of leave to remain if  It would not be reasonable to expect him to leave the UK.

The First and Second Appellants could not succeed under the Rules as such their cases then fell for consideration outside of the Rules under which they could only succeed under if there were exceptional, or compelling circumstances (MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192)

The UT identified the possible future outcomes for the three Appellants and concluded that it would not be a viable option for the Third Appellant, the only person with a prospect of success under the Rules, to be separated from his parents.

In considering the best interests of the Third Appellant, the court noted the following:

  1. He had spent three quarters of his life in the UK
  2. His life had been “…shaped by United Kingdom culture, values, pastimes, living standards, language and the prevailing education system.”
  • Thee critical milestones in both the personal and educational development of the Third Appellant had been passed and those that were looming – his GCSE’s in September 2016.
  1. His excellent academic progress
  2. His wide circle of friends
  3. His engagement in extra-curricular activities (including membership of the Army Cadets)

The UT concluded beyond the facts that he held the nationality and spent the first couple of years of his life there, the Third Appellant had minimal contact with Sri Lanka and had fully and completely integrated into the society and culture of the UK. The Third Appellant’s best interests were to remain the UK.

In respect of the consideration of Article 8 ECHR rights outside of the Rules the court reminded itself that a balancing exercise between the rights of the Appellants and the public interest considerations were required. Having accepted that the Third Appellant satisfied 276 ADE(1)(iv) of the Rules the court considered the balance to be in favour of the First and Second Appellants who were therefore the parents of a “qualifying child”.

Section 117B(6) of the Immigration Act 2014 which states:

“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.”

Conclusion

The UT remade the decision of the FtT by allowing the First and Second Appellants’ appeals outside the Rules and Allowing the Third Appellant’s appeal under paragraph 276 ADE(iv) of the Rules.

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