AM (Pakistan) and Others (Applicants/Respondents) v Secretary of State for the Home Department

Hearing date: 16 March 2017

Approved Judgment

This is an appeal by the Secretary of State against the decision of the Upper Tribunal ("UT") in which UT Judge Freeman overturned a decision of the First Tier Tribunal ("FTT") and granted the five respondents, (whom I shall call the applicants although they are the respondents to this appeal), leave to remain in the UK. The judge gave permission to appeal.

Preliminary point

A preliminary issue which arises is whether the Secretary of State should be allowed to pursue the appeal at all. The basis for contending that she should not is that although the UT judge gave permission to appeal, the Secretary of State lodged her appeal five days out of time, having been misled by an out of date commentary in the White Book. She ought to have lodged it within 28 days of the permission decision being sent but erroneously thought that it was within 28 days of it being received, even though it was accepted at the hearing the two dates were the same. The result was that it was five days, and three working days, late. The Secretary of State requires an extension of time for the appeal to be valid. The applicants submit that time should not be extended.

We have considered the relevant authorities including Mitchell v News Group Newspapers Ltd.[2013] EWCA Civ 1537; [2014] 1 WLR 795; Denton v TH White Ltd.[2014] EWCA Civ 906; [2014] 2 WLR 3926R (Hysaj) v Secretary of State for the Home Department[2014] EWCA Civ 1633; [2015] 1 WLR 2472. These cases require the court to consider the following factors in three stages: first, the seriousness and significance of the failure to comply; second, the reasons for that failure; and third, to evaluate all the circumstances of the case in order to deal justly with the application. As the court pointed out in Hysaj, para.42, there is no special rule for public authorities and no special leniency is shown to public bodies.

I have no doubt that the court ought to extend time in the particular circumstances. The breach is relatively minor; I would not describe it as trivial, but it is not very significant. Second, although there is no excuse for failing to comply with the rule, and it was not suggested that reliance on an outdated text provided one, the explanation does at least show that this was not a cavalier disregard of the provisions. Third, when taken in the context of a relatively minor breach, the circumstances in my view make it just to allow the extension of time. There is no prejudice to the applicants in terms of their ability to respond to the appeal; and the case raised a point of real importance in public law. In so far as it is said that this consideration is undermined by the fact that MA (Pakistan) v Upper Tribunal[2016] EWCA Civ. 705 has since been determined and has for the time being resolved the issues raised in the appeal, it has done so in a way which makes it plain that the merits of the first ground of appeal at least are very strong indeed, and that is a factor in favour of granting the extension.

The substantive appeal

The five applicants are all members of one family. The first two are husband and wife respectively. The other three are their children. The fifth and third are two teenage sons aged 16 (DOB 1 July 1999) and 13 (DOB 21 October 2001) respectively at the relevant time; and the fourth was a 4 year old (DOB 13 June 2011). They are all citizens of Pakistan. The father first came to the UK as a visitor with entry clearance valid from June 2004 to June 2009. The mother and two older children came as short-term visitors a year later in June 2005. The family remained illegally in the UK after the expiry of their visas.

During the course of 2010, the father made two applications for indefinite leave to remain on human rights grounds, listing his family members as dependents. The appellant rejected both. On 28 September 2012 the father applied again. This was refused on 27 September 2013 with no right of appeal. There was an application for judicial review which was settled on the basis that the Secretary of State would reconsider the matter and make a decision which carried an in-country right of appeal. The refusal was maintained on reconsideration on the grounds that the applicants did not qualify under the rules and there were no exceptional features which would justify the grant of leave under article 8. They appealed against that decision as they were entitled to do.

The legislation

The relevant statutory provisions are found in section 117B of the Nationality, Immigration and Asylum Act 2002. This is found in part 5A of the Act as inserted by the Immigration Act 2014.Section 117B sets out a number of public interest considerations applicable to article 8 cases. Subsection (1) states that "the maintenance of effective immigration control is in the public interest." Subsections (2) and (3) provide that it is in the public interest for applicants to be able to speak English and to be financially independent. Subsections (4) and (5) say that in any article 8 balancing exercise little weight should be given to a private life or to a relationship formed with a qualifying partner when the person is unlawfully in the UK or their status is otherwise precarious. Subsection (6) is critical to this appeal. It provides as follows:

"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."

A qualifying child is then defined in s 117D as a child under 18 who is either a British citizen or "has lived in the UK for a continuous period of seven years or more" ("the seven year rule").

Paragraph 276ADE(1) of the Immigration Rules sets out requirements to be met by applicants for leave to remain on the grounds of private life. Subsection (iv) reflects the effect of section 117B(6). It is 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 application, the applicant:

(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK."

It was accepted that the two teenage children were qualifying children who satisfied the seven year rule, and that the parents had a genuine and subsisting parental relationship with them.

The decision of the FTT

The family's appeal against that decision of the Secretary of State refusing leave came before FTT Judge Kelly who gave a judgment dismissing the appeal on 20 August 2015. The argument at the hearing centred on the two older children. FTJ Kelly accepted that focusing on the children was the only viable strategy since, as counsel for the applicants – (not Mr Chelvan or Ms Jagadesham), had conceded, "the appeals of the First and Second Appellants would be most unlikely to succeed in view of their poor immigration history" (para.24).

The question to be resolved was whether or not paragraph 276ADE(1)(iv) of the Immigration Rules applied to these two children and, in particular, whether it would not be reasonable to expect these children to leave the UK. As the judge recognised, she was required by section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the best interests of the children. She observed that she attached significant weight to the time they had lived in the UK and she recognised that this would carry increased weight the more advanced or critical the stage of their education.

The judge considered that it was indeed in the best interests of the children to remain in the UK "but not overwhelmingly so" and she gave detailed reasons for that conclusion. Essentially she accepted that they were settled in their schools, had developed sporting and other interests, were benefiting from an English education and had developed close friendships which they did not want to lose and whose loss would cause them some emotional distress. At the same time she was satisfied that they would settle in Pakistan and would be able to pursue their sporting interests and further education there, where English continues to be the official language. She did not think that the distress from losing friends would be long-lasting or irreversible, and they would be returning to an extended family in Pakistan. Returning to Pakistan would not adversely affect their health or frustrate their long-term ambitions.

Notwithstanding that the children's best interests were to remain in the UK, the judge held that they should be refused leave to remain which necessarily meant that the other three applicants' cases had to fail also. The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused.

In reaching her conclusion the judge followed...