Azimi-Moayed and Others (Decisions Affecting Children; Onwards Appeals); Azimi-Moayed v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | The Hon MR Justice Blake,Taylor,Taylor UTJ,Blake J |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] UKUT 197 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 26 March 2013 |
[2013] UKUT 197 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Blake J (President) and Taylor UTJ
Mr T Hussain instructed by Parker Rhodes Hickmotts, for the Claimant;
Mrs R Pettersen, Senior Home Office Presenting Officer, for the Secretary of State.
R v Secretary of State for the Home Department ex parte RazgarUNK [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
Borders, Citizenship and Immigration Act 2009, section 55
Tribunals, Courts and Enforcement Act 2007, sections 11 & 12
Tribunal Procedure (Upper Tribunal) Rules 2008, rules 2, 5, 21, 22, 23,24 & 25.
Immigration — children — best interests of the child — clearly established principles — marginal error of law — procedure and process — grounds of appeal — late and unsatisfactory application to amend — competence of advocate questioned — fairness — no arguable error of law
The first Claimant, a citizen of Iran, applied for asylum in the United Kingdom with his wife and two children in January 2012. The Secretary of State for the Home Department rejected the applications on credibility grounds. The Claimants appealed. The hearing took place in March 2012. The First-tier Tribunal Judge noted during the hearing that the first Claimant became emotional and said the account he was giving was suggested to him by a friend. The Judge gave counsel an opportunity to confirm that the Claimant was well enough to continue. Counsel subsequently confirmed that he had no reason to suspect that the Claimant was unwell but admitted that communication between them was limited as an interpreter was not present. Although the Judge noted that the issues at the hearing were entirely confined to the asylum claim, he undertook an analysis of the Claimants' rights under Article 8 of the ECHR and concluded that there would be no interference with family life as the family would face removal together. The Judge found the asylum claim to be not credible and dismissed the appeal.
The Claimants were granted permission to appeal to the Upper Tribunal on the ground that the First-tier Tribunal Judge had not expressly taken into account the best interests of the children as required by section 55 of the Borders, Citizenship and Immigration Act 2009. Shortly before the Upper Tribunal hearing the Claimants applied to amend the notice of appeal. They sought to include that the first Claimant was dissatisfied with the service provided by his counsel at the appeal hearing and that his counsel should have sought an adjournment or at least taken full instructions through an interpreter. The failure to do so had resulted in a procedural flaw in the appeal hearing for which the Claimants were not responsible.
Held, dismissing the appeal:
(1) There were clear principles of law reflected in the jurisprudence of the Upper Tribunal and higher courts to assist in the determination of appeals where children were affected. The duty to have regard as a primary consideration to the best interests of a child were so well established that a judge should take the point for him or herself as an obvious point to be considered, where the issue arose on the evidence, irrespective of whether the claimants or the advocates had done so. Although judges must be alert to ensure that their duties were met and in some cases judges might need to explore whether further information or enquiries were required, judges primarily acted on the evidence in the case. Where that evidence gave no suggestion that the welfare or best interests of a child were threatened by an immigration decision, there was no basis for any further exploration or reasoned decision on the question. There was no obligation on the First-tier Tribunal Judge in the instant case to do any more than he had done (paras 10–12).
(2) The best interests principle did not mean that it was automatically in the interests of any child to be permitted to remain in the United Kingdom. The case law of the Upper Tribunal had identified principles to assist in the determination of appeals where children were affected by the decision. As a starting point it was in the best interests of children to be with both their parents and, if both parents were being removed, then so should dependent children who formed part of their household unless there were reasons to the contrary. It was generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belonged. Lengthy residence in a country other than the state of origin could lead to development of social, cultural and educational ties that it would be inappropriate to disrupt, in the absence of a compelling reason to the contrary. What amounted to lengthy residence was not clear cut but past and present policies had identified seven years as a relevant period. Seven years from age four was likely to be more significant to a child than the first seven years of life. Very young children were...
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