Am (S 117B)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Cmg Ockelton,Holmes,CMG Ockelton,Holmes DUTJ
Judgment Date17 April 2015
Neutral Citation[2015] UKUT 260 (IAC)

[2015] UKUT 260 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Cmg Ockelton, VICE PRESIDENT

DEPUTY UPPER TRIBUNAL JUDGE Holmes

Between
AM (Anonymity Direction)
Appellant
and
Secretary of State for The Home Department
Respondent
Representation:

For the Appellant: Ms Brakaj, Solicitor, Iris Law Firm

For the Respondent: Mr Dunlop, Counsel, instructed by Treasury Solicitor

AM (S 117B) Malawi

  • (1) The statutory duty to consider the matters set out in s 117B of the 2002 Act is satisfied if the Tribunal's decision shows that it has had regard to such parts of it as are relevant.

  • (2) An appellant can obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.

  • (3) Parliament has now drawn a sharp distinction between any period of time during which a person has been in the UK “unlawfully”, and any period of time during which that person's immigration status in the UK was merely “precarious”.

  • (4) Those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person's immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.

  • (5) In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious.

  • (6) When the question posed by s117B(6) is the same question posed in relation to children by paragraph 276ADE(1)(iv) it must be posed and answered in the proper context of whether it was reasonable to expect the child to follow its parents to their country of origin; EV (Philippines). It is not however a question that needs to be posed and answered in relation to each child more than once.

DECISION AND REASONS
1

The Appellant was granted entry clearance in September 2006 as a student. There followed successive decisions to vary his leave to remain, but ultimately his leave to remain expired on 2 December 2012. In the meantime his wife and eldest daughter were granted entry clearance to join him as his dependents in January 2007, and a second child was then born to the couple in the UK on 3 April 2011. All of the family are citizens of Malawi.

2

As an overstayer, on 24 December 2012, the Appellant applied for a grant of leave to remain. In so doing he relied upon a risk of a breach of the Article 3 rights of his wife in the event of her removal to Malawi. That application was refused on 27 September 2013.

3

The Appellant then made an application on his own behalf for asylum on 7 November 2013. In so doing he relied upon the risk of harm that he said his eldest daughter would face in the event of her removal to Malawi. At interview he accepted that neither he nor his wife faced any risk of harm in the event of their removal to Malawi, and that his concerns were focused upon his eldest daughter and the consequences for her education if the family returned. The asylum application was refused on 6 August 2014, and in consequence a series of individual decisions to remove the Appellant and each member of his family to Malawi as overstayers were made by the Respondent.

4

The Appellant alone lodged an appeal against the removal decision that was made in relation to him. That appeal was dismissed on asylum, humanitarian protection, and human rights grounds by First Tier Tribunal Judge Hands in a determination promulgated on 22 September 2014. Permission to appeal that decision was granted to the Appellant by First Tier Tribunal Judge Simpson on 16 October 2014.

5

The matter came before a Presidential panel of the Upper Tribunal on 5 December 2014. Based upon a combination of the application for permission to appeal, the grant of permission, and the oral submissions made at that hearing, the following questions of law were identified as arising, and directions were made for their determination. (For administrative reasons the Upper Tribunal has not been able to reconstitute the same panel, but the parties have no objection to that and are content to treat the hearing of 5 December 2014 as a directions hearing.)

  • i) The legal consequences of the failure of the First-tier Tribunal (the “FtT”) to consider all of the factors listed in section 117B of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”), taking into account what is mandated by section 117A(2)(a).

  • ii) Whether, having regard to section 117B(5) of the 2002 Act, the FtT erred in law in holding, in [52], that the private lives of all members of the Appellant's family were established during a period when their immigration status was precarious in that it was of a temporary nature dependent upon the Appellant's right to remain in the United Kingdom as a student.

  • iii) Whether, independent of the two issues formulated above, the determination of the FtT is erroneous in law having regard to section 55 of the Borders, Citizenship and Immigration Act 2009. [See, in this respect, the recent decision of the Upper Tribunal in JO Nigeria [2014] UKUT 00517 (IAC).]

Sections 117A-D of the 2002 Act
6

Section 19 of the Immigration Act 2014 introduced into the Nationality Immigration and Asylum Act 2002 a new Part 5A, headed “Article 8 of the ECHR: Public Interest Considerations”. These new provisions are set out in sections 117A-D of the 2002 Act, which were brought into effect on 28 July 2014 pursuant to Article 3 of The Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order 2014. They provide, in so far as is material to this appeal, as follows;

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 1998.

  • (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).

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 well-being 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-

    • (a) are less of a burden on taxpayers, and

    • (b) are better able to integrate into society.

  • (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

    • (a) are not a burden on taxpayers, and

    • (b) 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.

117D Interpretation of this Part

  • (1) In this Part –

  • “Article 8” means Article 8 of the European Convention on Human Rights;

  • “qualifying child” means a person who is under the age of 18 and who –

    • (a) is a British citizen, or,

    • (b) has lived in the United Kingdom for a continuous period of seven years or more

    • “qualifying partner” means a partner who –

    • (a) is a British citizen, or,

    • (b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see section 33(2A) of that Act.

The failure to set out ss117A-117D in full
7

It is common ground that although the judge in the course of her decision did make express reference both to s117A(3), and to s117B(5), she did not therein set out in full either the provisions of s117A, or s117B, and, she did not make any express reference to any of the other provisions of s117A-D.

8

The Appellant has sought to persuade us that this is, of itself, an error of law that is sufficient to require the decision to be set aside and remade. We disagree. It is not necessary for the FtT to set out in full in each of its decisions each of the statutory provisions that it seeks to apply to the evidence placed before it in the course of an appeal. Still less is it necessary to make reference to statutory provisions that have no application to that evidence. What is required of the FtT is no more, and no less, than that its decisions should demonstrate that the relevant statutory provisions have been taken into account, and that they have been applied to the facts of...

To continue reading

Request your trial
353 cases
  • Rhuppiah v Secretary of State for the Home Department
    • United Kingdom
    • Supreme Court
    • 14 November 2018
    ...of the Upper Tribunal given by Deputy Upper Tribunal Judge Holmes on behalf of himself and Mr CMG Ockelton, the Vice-President, in AM (S117B) Malawi [2015] UKUT 260 (IAC), [2015] Imm AR 5. The appellant, a citizen of Malawi, entered the UK in 2006 on a student visa. In 2007 his wife and da......
  • Kaur (Children's Best Interests/Public Interest Interface)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 10 January 2017
    ...consideration. They are also not British citizens”. In a later passage, the tribunal refers to the decision of the Upper Tribunal in AM (Section 117B) Malawi [2015] UKUT 0260 (IAC), noting the analysis that in section 117B of the 2002 Act Parliament clearly distinguished between those who h......
  • Treebhawon and Others (NIAA 2002 Part 5A – Compelling Circumstances Test)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 9 January 2017
    ...117A (1) and (2). Other major pronouncements of the Upper Tribunal on sections 117A – 117B are found in AM (Section 117B) Malawi [2015] UKUT 0260 (IAC) and Deelah and Others (section 117B – ambit) [2015] UKUT 00515 (IAC). 14 None of the above decisions addresses the specific issue which ari......
  • Secretary of State for the Home Department v Bossade; Bossade (ss 117A-D - Interrelationship with Rules)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 16 July 2015
    ...117A(2) provides that the court or tribunal “must (in particular) have regard to … considerations” that are then enumerated: see Dube, AM (S.117B) [2015] UKUT 260 35 Second, ss.117A-D do not provide that such considerations are to be applied to the Immigration Rules or in what way. They st......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT