FA (Pakistan) v Secretary of State for the Home Department

Introduction

This is an application for permission to appeal against the decision of the Upper Tribunal (“UT”) Judge Taylor, dated 10 December 2015, whereby she dismissed the applicant's appeal against the decision of the First-tier Tribunal (“FTT”) Judge Caswell, dated 3 June 2015. The FTT had dismissed the applicant's appeal against the decision of the respondent (“the SSHD”), made by letter of 11 February 2015 refusing the applicants' application for leave to remain under Articles 3 and 8 ECHR.

Permission to appeal was refused by Moore-Bick LJ on the papers on 2 August 2016. The applicants renewed the application orally at a hearing before Black LJ on 5 April 2017. She adjourned the application, to be listed for hearing with the appeal to follow if permission was granted.

The Factual and Procedural Background

The Applicants

There were originally five applicants all being nationals of Pakistan. They are as follows:

(1) FA (date of birth 1 January 1958), father);

(2) MA (date of birth 14 January 1990), son;

(3) FF (date of birth 31 January 1993), daughter;

(4) RF (date of birth 7 September 1995), daughter;

(v) SF (Sana)(date of birth 26 October 1996), daughter.

SF and RF subsequently obtained limited leave to remain and both have withdrawn their appeals.

FA also has two elder daughters who are both British citizens. Another elder daughter has leave as the spouse of a British citizen. FA has another elder son who has indefinite leave to remain. FA and his wife, NA, live with their eldest son and his family, which includes their granddaughter. In January 2018 MA married a British citizen.

Procedural History

FA arrived in the UK on 15 February 2005 as a work permit holder with leave to remain until 13 January 2009. His wife, NA, entered the UK as his dependent on 13 September 2006 with their four children MA, FF, RF and SF.

FA applied for further leave to remain as a visitor, which was refused with a limited right of appeal on 6 May 2009.

On 31 July 2009, FA applied for limited leave to remain for work permit employment, which was refused with no right of appeal on 28 February 2011.

On 26 January 2012, FA was served with a IS151A requiring immediate departure from the UK as an over stayer.

On 25 May 2012, FA applied for leave to remain outside the Rules which was refused on 22 October 2012 with no right of appeal.

On 21 October 2013, FA applied for leave to remain on the basis of family and private life which was refused on 13 December 2013 with no right of appeal.

FA requested that his application be reconsidered on 5 February 2014 but this request was refused on 30 April 2014. Further representations were made on 6 May 2014.

On 22 January 2015 a nonstop warning was issued to FA. On 3 February 2015, FA asked for his case to be considered under Articles 3 and 8 of the ECHR. By a detailed decision, dated 11 February 2015, it was confirmed that FA did not have any form of family life that qualified him for leave under the Rules, it being noted that all his children were adults at the time of the decision. It was stated in terms that the conditions of Appendix FM (inclusive of EX1) to the Rules were not satisfied on the facts. Further, it was determined that there would be no breach of Article 8 or 3 of the ECHR by FA's removal from the UK. When considering whether there were any exceptional circumstances requiring leave to be granted outside the Rules, the decision noted that section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”)and the best interests of the children had been considered but there was no evidence of physical or emotional dependency beyond normal emotional ties between adult children and FA that justified leave. FA was granted a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (“NIAA”).

An appeal on behalf of FA and the original applicants was heard on 21 May 2015 and refused by FTT Judge Caswell by a decision of 3 June 2015. The FTT judge's findings included the following:

“32. The Appellant and his wife Punjabi together. Their children speak Punjabi to them. the family would be returned together to Pakistan and would draw help and support from each other. They are all adults, and potentially able to work. they could be supported financially and in other ways from the UK, if necessary.

33. I am asked to consider the position of Sana under paragraph 276ADE of the Immigration Rules, since she spent 7 years in the UK continuously while a minor. Since it is not argued that Sana has spent at least half her life in the UK, the relevant subparagraph is (vi), which provides that she must show she has lived continuously in the UK for less than 20 years and that there would be ‘very significant obstacles to [her] integration into [Pakistan]’. Although I accept that Sana is culturally adapted to life in the UK, has friends here and enjoys the freedom of living in a liberal country, she has always lived in a family with Pakistani origins, is of Pakistan heritage herself, speaks some Punjabi, and Punjabi is spoken at home. There is nothing before me to suggest that she is not healthy and at least average intelligence. A young adult with these qualities, who is returned to the country of her nationality with her elder siblings and her parents, would not face ‘very significant obstacles to integration’ into Pakistani society, in my judgment. I also find that the same is true of all the other members of the family.’

34. I am asked to consider the appeal outside the Rules, on general Article 8 grounds. Applying SS (Congo), I do not find here that any of the circumstances of this appeal are compelling, such that an Article 8 consideration is merited. Even taking all the factors applying to each family member together, and considering the position for those who remain in the UK, like the Appellant's elder children, uncle, grandchildren and his mother, I do not find that there are circumstances which call for an assessment of the position under Razgar.

35. However, if such a consideration were made, then applying Lord Bingham's five stage test, I accept that there is family life between the Appellant and his wife and their dependent children, on the available evidence, and also that there is family life between the Appellants in this appeal and the members of the household where they are living, including the Appellant's grandchild and his mother. However, for the Appellants, who would all be returned together, there would be no interference with family life, and for the others remaining in the UK (none of whom I heard evidence from), although there would be interference, I do not find that it would be very significant. The Appellants are all adults. They can keep in touch with the UK family members through phone, internet and other modern means of communication. There can be visits made by family members to Pakistan. The relationships have not been shown to be of such strength as to make this a significant hardship.

36. Clearly, the Respondent has shown that the decisions to remove are lawful and I find they serve the legitimate aim of the protection of the social and economic interests of the UK through the maintenance of fair and effective immigration control. I also find that the Respondent has shown that the decisions to remove are proportionate. The younger Appellants all speak English. I accept they have been supported financially by relatives, but they have all utilised the educational and medical facilities of the UK, without being entitled to them. The family chose to live in the UK even when all their applications to stay were rejected. The fact they developed ties to this country and to family and friends here was a matter which they (or at least the Appellant and his wife) must have taken into account when deciding to take that course.

37. There are no children under the age of 18. The younger Appellants have all been educated through secondary school, speak English, are in good health and able either to work or to study. They could apply from their country to...