EV (Philippines) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Lord Justice Lewison,Lord Justice Jackson |
| Judgment Date | 26 June 2014 |
| Neutral Citation | [2014] EWCA Civ 874 |
| Docket Number | Case No: C5/2013/2758 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 2014 |
[2014] EWCA Civ 874
Lord Justice Jackson
Lord Justice Lewison
and
Lord Justice Christopher Clarke
Case No: C5/2013/2758
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
HHJ Moulden
IA/26810/26822/26828/26837/26842/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Shivani Jegarajah and Bronwen Jones (instructed by MTA Corporate Solicitors LLP) for the Appellant
Susan Chan (instructed by Treasury Solicitors) for the Respondent
Hearing date: 7 th May 2014
This is an appeal from a decision of the Upper Tribunal (UT) rejecting an appeal from the First Tier Tribunal (FTT) which had rejected the Appellants' appeal from the refusal of the Secretary of State ("SOS") on 6 November 2012 to accede to their applications of 25 March 2011.
The proceedings have a chequered history some of which it is necessary to set out.
On 12 June 2007 EV, who is a Philippine national, entered the United Kingdom with a work permit as a Skilled Care Worker and was given leave to remain until 8 February 2011. She was joined on 25 April 2008 by BV, her husband, as a dependent partner; and on 17 July 2009 by their three children – (a) KrV (born 15 April 2001), their daughter; (b) BV (born 16.5.02), their son; and (c) KaV (born 30 August 2004), another daughter; as dependants on EV's visa.
On 7 February 2011 the Appellants applied for indefinite leave to remain. If their applications were in the correct form they were made in time. However, on 8 March 2011 they were rejected on the ground that they were (allegedly) made on a form that was no longer valid.
On 25 March 2011 the Appellants made renewed applications for indefinite leave to remain as, in the case of EV, a Tier 2 General Migrant and, in the case of the others, as dependents. On 15 July 2011 those applications were refused by the SOS who said that there was no right of appeal. On 25 July 2011 notice of appeal was filed against that decision, disputing the contention that there was no right to do so. Thereafter three hearings had to be adjourned because no representative of the SOS appeared at them. On 10 February 2012 the SOS sent a representative to a hearing but without any file.
On 26 March 2012 FTT Judge Herlihy decided that the appellants had no right of appeal as the decision of 25 March 2011 was not within the definition of an " immigration decision" in section 82 (2) of the Nationality, Immigration and Asylum Act 2002 since the Appellants had, as he held, no leave to remain when they made their applications on 25 March 2011. It appears that she was not aware of the fact that the applications of 7 February 2011 may well have been on valid forms.
Judge Herlihy recorded, as was the fact, that there had been a repeated failure by the SOS to comply with directions issued by the Tribunal. She urged the SOS, given the passage of time, to consider the further representations made by the Appellants' representative in December 2011 in respect of their Article 8 claim and to issue a fresh and appealable decision.
On 17 July 2012 the SOS gave notice to the Appellants of a decision to remove them and on 18 July 2012 she gave reasons for refusing their Article 8 based applications. An appeal was launched and on 19 September 2012 FTT Judge Turkington dealt with it by referring the applications of 25 March 2011 back to the SOS to enable full consideration of three matters: (i) the legality of the decision of 8 March 2011 returning the forms as no longer valid; (ii) the issues which arose under section 55 of the Borders, Citizenship and Immigration Act 2002; and (iii) the issues which arose under Article As to (i) the judge observed that it now appeared that the forms used were not invalid as a result of which the Appellants might have outstanding appeals under the Rules.
The upshot of this was that on 6 November 2012 the SOS withdrew the decision of 15 July 2011; refused the applications of 25 March 2011 afresh; and decided to remove the appellants. The last decision was invalid. There was an appeal to the FTT (Judge Walters) which was dismissed by a judgment promulgated on 3 May 2013 and a further appeal to the UT (Judge Moulden), which was dismissed by a judgment promulgated on 10 July 2013, which is the subject of the present appeal.
Permission to appeal was given by Gloster LJ on the issue as to whether, when there was a finding that it was in the children's best interests that their education in the UK should not be disrupted, the need for immigration control could have been, on the present facts, a countervailing consideration sufficient to displace the best interests of the child.
A killer point?
The Appellants were represented, pro bono, by Ms Shivani Jegarajah and Ms Bronwen Jones. They did not settle the skeleton argument which gave rise to permission to appeal to this court, which raised the point upon which Gloster LJ gave leave. They submitted – in a skeleton argument filed on 4 May 2014 — that there was a logically prior point which went to the lawfulness of the decisions of the SOS and which was determinative of the appeal. Judge Turkington had, they submitted, held that the applications of 7 February 2011 had been wrongly rejected on 8 March 2011. They were, accordingly, still pending. Moreover, because they were made in time, none of the Appellants were ever overstayers and still had residual leave to remain under section 3C of the Immigration Act 1971 since their valid appeal had never been decided upon or withdrawn. Further, the fact that their applications were in time made a critical difference in the way in which any question of whether their Article 8 rights were overborne by the requirement of effective immigration control should be answered. As a result the decision made by the SOS on 6 November 2012 was unlawful.
It is not wholly clear from the language used by Judge Turkington whether he was intending (a) to find (i) that the forms used on 7 February 2011were valid; (ii) the original application of 7 February 2011 was, therefore, made in time; and (iii) the application was wrongly rejected, and, on that account, to remit the case to the SOS for reconsideration; or (b) to remit the case for her to consider whether propositions (i) – (iii) were correct.
It is not necessary to decide this. The point is not open to the Appellants in this Court given the terms on which they obtained permission to appeal. Further, insofar as Article 8, with which this appeal is concerned, is concerned the Appellants have suffered no prejudice. The SOS made her decision in respect of the 25 March 2011 application. It is apparent from her reasons that that decision was not based on, or influenced by, any contention that the applications that she was considering were out of time or that that any of the Appellants was an overstayer. The Appellants cannot, therefore, complain that she considered the application of 25 March 2011 and not that of 7 February 2011, because they were not prejudiced on that account. Judge Moulder in the UT was right so to hold. Further, as he observed, the FTT was never asked to consider the case on the basis that the application of 7 February 2011 was outstanding. In addition, insofar as the application of 7 February 2011 was on the basis that EV was entitled to remain as a Tier 2 (General Migrant) the claim had been conceded to be unmaintainable before the FTT; and the appropriateness of the concession was accepted by counsel before the UT. The contrary was not argued before us.
The First Tier Tribunal
The reasons for the rejection of EV's claim had been that her job was not one involving the requisite level of skill; and that she was not being paid a sufficient amount for her to achieve the necessary number of points to qualify. That she did not do so was because, although she had been recruited and sponsored on the basis that she would be employed at a level and paid at a rate which would have enabled her to qualify, her employers had wrongfully failed to employ her at the relevant rate. The judge accepted that ever since her arrival EV had been " defrauded by the care home owner by being underpaid" [54] although she had not informed the SOS of this.
In addition, the Appellants could not qualify under what was described in the judgment as " the Immigration Rules version of Article 8" because they had not been in the UK long enough. The Appellants' case thus fell to be considered under Article 8.
As to that the judge found that all the Appellants had established private and family lives together, and said that he would not consider allowing the appeal of the children but not the parents: [28] & [30]. The removal of the Appellants would amount to an interference with the exercise of their right to respect for their private lives with consequences of such gravity as potentially engaged Article 8 [31]. Such interference would however be in accordance with immigration law [32] and was necessary in the interests of the economic well being of the country through the maintenance of immigration control [33]. He then turned to the question of proportionality.
Proportionality
Employment and housing
As to that he found that EV had an M.SC degree in Nursing [16] such that she would have a reasonable chance of getting employment in the Philippines [17]. Jobs of the type that her husband had undertaken would be likely still to be available to him there [39]. He declined to accept...
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