Fahmida Khanom Runa v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb,Lord Justice Singh,Lord Justice Baker |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWCA Civ 514 |
| Date | 08 April 2020 |
| Docket Number | Case No: C5/2019/1497 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 514
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Deputy Upper Tribunal Judge Mandalia
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
Lord Justice Baker
and
Mr Justice Cobb
Case No: C5/2019/1497
Mr Michael Biggs and Mr Michael West (instructed by Kalam Solicitors) for the Appellant
Mr Jack Anderson (instructed by the Government Legal Department) for the Respondent
Hearing date: 18 March 2020
Judgment Approved
Introduction
By a decision dated 10 June 2015, the Respondent refused the Appellant's application for leave to remain in the United Kingdom (“UK”) as the spouse of a person present and settled in the UK. The Appellant's appeal against that decision was allowed by the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) but that decision was set aside by the Upper Tribunal (Immigration and Asylum Chamber) (“UT”), which allowed the Secretary of State's appeal to it and dismissed the Appellant's underlying appeal. The Appellant now appeals, with the permission of this Court, against the decision of Deputy Upper Tribunal Judge Mandalia (the “DUTJ”), which was promulgated on 18 March 2019.
Factual Background
The Appellant is a national of Bangladesh and was born on 11 April 1992. She was granted leave to enter the UK as a visitor from 21 May 2006 to 21 November 2006. She arrived in the UK on 12 June 2006 and remained in the UK unlawfully when her leave to enter expired.
On 12 June 2014, the Appellant married Mr Ali Hessan, a British citizen, and on 1 April 2015 made an application for leave to remain in the UK as the spouse of a person present and settled in the UK. The application was refused by the Respondent in a decision dated 10 June 2015. On 20 June 2015, the Appellant gave notice of her appeal to the FTT.
The Appellant's first son was born on 6 October 2015. He is a British citizen.
On 18 August 2016, the FTT heard the Appellant's appeal. The evidence before the Tribunal was that the Appellant still had family in Bangladesh, consisting of her father, step-mother and one brother. Mr Hessan was employed as a security guard in the UK.
In a decision dated 15 September 2016, the FTT allowed the Appellant's appeal. The Respondent's application to the FTT for permission to appeal was refused on 11 January 2017. On 25 January 2017, the Respondent applied to the UT for permission to appeal.
On 3 October 2018, the Appellant's second son was born. He is also a British citizen.
On 26 October 2018, the UT granted the Respondent's application for permission to appeal on the basis that the FTT had erred in its approach to para. 276ADE and Appendix FM of the Immigration Rules, and failed to give adequate reasons for its decision. In a decision promulgated on 18 March 2019, the UT allowed the Respondent's appeal and dismissed the Appellant's underlying appeal.
On 29 March 2019, the Appellant applied to the UT for permission to appeal to the Court of Appeal. That application was refused on 23 May 2019.
In an order dated 1 November 2019, I granted permission to appeal to the Court of Appeal (on Grounds 1 and 2 only).
Decision under appeal
By the decision of 10 June 2015, the Respondent concluded that the Appellant was unable to satisfy the requirements of para. 276ADE(1)(vi) and Appendix FM of the Immigration Rules. The Respondent considered the Appellant's application by reference to the requirements for leave to remain as a partner under Appendix FM R-LTRP. As the Appellant could not meet all the requirements of Section E-LTRP, the Respondent considered the application by reference to the requirements of para. E-LTRP 1.1(a), (b) and (d). The Respondent was not satisfied that the requirements of paragraph EX.1 were met by the Appellant as: (i) there was no evidence of insurmountable obstacles preventing the Appellant and her partner from continuing their relationship in Bangladesh; and (ii) there were no exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights (“the Convention”), might warrant the grant of leave to remain outside the requirements of the Immigration Rules.
When the Appellant's underlying appeal came before the UT, the DUTJ first considered whether the Appellant met the requirements of para. 276ADE and Appendix FM of the Immigration Rules. As the Appellant had remained unlawfully in the UK, she could not satisfy the immigration status requirements set out in appendix FM of the Immigration Rules. Therefore the DUTJ considered para. EX.1 and found that the Appellant was unable to establish that there were insurmountable obstacles to family life between the Appellant and her partner continuing outside the UK. On the question whether it would be “reasonable” to expect the children to leave the UK, the DUTJ considered the test outlined in KO (Nigeria) and Ors v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273, at para. 19, citing EV (Philippines) and Ors v Secretary of State for the Home Department [2014] EWCA Civ 874, at para. 58, where it was said by Lewison LJ that a “real world” view must be taken. The DUTJ concluded that, in this case, where there were no insurmountable obstacles to family life between the Appellant and her husband continuing outside the UK, the natural expectation would be that the children, aged 3 and 3 months respectively, would go with them and there was nothing in the evidence to suggest that this would not be reasonable.
As to the human rights claim on Article 8 grounds, the DUTJ applied the approach set out by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368. It was held that Article 8 was engaged and the DUTJ moved to consider whether the interference was in accordance with the law and necessary to protect the economic well-being of the country. The primary issue was whether the interference was proportionate to the legitimate aim sought to be achieved. As required by section 117A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), as amended by the Immigration Act 2014, the DUTJ had regard to the considerations listed in section 117B. Having taken all the evidence into account, it was held that the refusal of leave to remain was proportionate to the legitimate aim of enforcing immigration control. The Appellant's appeal was therefore dismissed.
Grounds of Appeal
In an order dated 1 November 2019, I granted permission to appeal on Grounds 1 and 2 only:
(1) Ground 1: the DUTJ erred in the construction and application of section 117B(6) of the 2002 Act and the “reasonableness” test.
(2) Ground 2: the DUTJ erred with regard to proportionality under Article 8 outside the Immigration Rules.
Under Ground 1, the Appellant submits that the DUTJ incorrectly determined whether it was reasonable to expect her two British children to leave the UK. The test is stated as “…is it reasonable to expect the child to follow the parent with no right to remain in the country of origin?” ( EV (Philippines), at para. 58). It is argued that the DUTJ fell into error in failing to establish the context in which to make the reasonableness assessment under section 117B(6). In addition, the DUTJ erroneously contemplated the possibility that it would be reasonable for the British children to remain in the UK with their father only, contrary to the approach taken by this Court in AB (Jamaica) & AO (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 661; [2019] 1 WLR 4541. The Appellant further relies on the judgment of Elias LJ in R (MA (Pakistan) and Ors) v Upper Tribunal (Immigration and Asylum Chamber) and Anor [2016] EWCA Civ 705; [2016] 1 WLR 5093, at para. 35, where it was recorded that it had been conceded by counsel for the Secretary of State that it will be “relatively rare” for it to be reasonable to expect a British child to leave the UK.
Under Ground 2, the Appellant notes that, at paras. 31 and 32 of the DUTJ's decision, public interest considerations, and the fact that the Appellant did not meet the rules (under Appendix FM, para. EX.1(b)), were both considered by the DUTJ alongside the question of “reasonableness” under section 117B(6). It is argued that the DUTJ was wrong to take into consideration those factors when assessing proportionality because wider public interest considerations are not relevant in making that assessment.
At the hearing before us Mr Michael Biggs, who appeared with Mr Michael West, in substance ran the two grounds of appeal together. We are grateful to them both, as we are to Mr Jack Anderson, who made helpful submissions on behalf of the Respondent.
Submissions for the Respondent
Under Ground 1, the Respondent argues that EV (Philippines) is authority for the proposition that proportionality must be addressed on the basis of facts as they are in the “real world”. On the facts of the present case, it is submitted that there was no evidence to support the existence of any serious impediment to the family relocating to Bangladesh. In addition, the Respondent submits that the DUTJ was entitled to consider the possibility that the children could reasonably remain in the UK with their father, as that may be relevant to the overall assessment of proportionality....
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