MK (Best Interests of Child) India

 
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[2011] UKUT 475 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Storey

UPPER TRIBUNAL JUDGE Kebede

Between
The Secretary of State for the Home Department
Appellant
and
MK
Respondent
Representation:

For the Appellant: Ms M Tanner, Home Office Presenting Officer

For the Respondent: Ms T White, Counsel, instructed by Ali Sinclair Solicitors

MK (best interests of child) India

  • i) The best interests of the child is a broad notion and its assessment requires the taking into account and weighing up of diverse factors, although in the immigration context the most important of these have been identified by the Supreme Court in ZH (Tanzania) [2011] UKSC 4 , the Court of Appeal inAJ (India) [2011] EWCA Civ 1191and by the Upper Tribunal inE-A (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC).

  • ii) Whilst an important part of ascertaining what are the best interests of the child is to seek to discover the child's own wishes and views (these being given due weight in accordance with the age and maturity of the child) the notion is not a purely subjective one and requires an objective assessment.

  • iii) Whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), ZH (Tanzania) makes clear that it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration.

  • iv) What is required by consideration of the best interests of the child is an “overall assessment” and it follows that its nature and outcome must be reflected in the wider Article 8(2) proportionality assessment. Consideration of the best interests of the child cannot be reduced to a mere yes or no answer to the question of whether removal of the child and/or relevant parent is or is not in the child's best interests. Factors pointing for and against the best interests of the child being to stay or go must not be overlooked.

  • v) It is important when considering a child's education to have regard not just to the evidence relating to any short-term disruption of current schooling that will be caused by any removal but also to that relating to the impact on a child's educational development, progress and opportunities in the broader sense.

DETERMINATION AND REASONS
1

The respondent [hereafter “the claimant”] is a citizen of India. On 22 June 2004 he applied in Mumbai for entry clearance as a visitor to the UK for just one week, to be accompanied by his wife and daughter, H. They were subsequently granted six months' leave as visitors arriving in the UK on 25 August 2004. They did not leave the UK by the date their leave expired but overstayed. On 9 September 2005 the claimant's wife gave birth to their second daughter, T. On 30 April 2009 the claimant applied for indefinite leave to remain. On 8 July 2010 and then again on 21 January 2011 the appellant, the Secretary of State (hereafter “the SSHD”) refused that application. The claimant appealed. In a determination notified on 8 April 2011 the First-tier Tribunal (Immigration Judge Hedworth) decided to allow his appeal on Article 8 ECHR grounds. The SSHD was successful in obtaining a grant of permission to appeal, bringing the matter before us.

2

The judge's reasons for allowing the appeal are set out at paragraphs 35–59. At paras 35–44 he explained why he considered the parents to have a poor immigration history and why he considered that they could re-establish their life in India at a reasonable standard of living. At para 44 he turned to the issue of the children's best interests in the light of the guidance given in LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC) and in ZH (Tanzania) [2011] UKSC 4. At para 51 he stated that the youngest child, T, would have no difficulty in readjusting to life and school in India. At para 53 he found that the claimant's children would have access to good education in India and that it was “frankly unlikely” that they knew little or no Gujerati but in any event there would be no linguistic barriers for them in India. Having at para 52 given his own assessment of H as a “bright, enthusiastic girl, well-liked in school and an asset to it” and in para 54 having noted the contents of H's own letter to the court, he then turned to the letter of 16 March 2011 from the head teacher of H's primary school and to the family GP's letter of 24 February 2011. At paras 56–59 the judge stated:

“56. I bear in mind that both these men are professionals and therefore do not and can not lightly set aside their views. Both may be said to have the parent's interests at heart too as much as those of the children. But the reality is that both men who have known [H] for a long time fear that her best interests would not be served if she was taken out of the system and life in which she has now become imbedded. [The head teacher] uses the words ‘highly detrimental’, Dr Sinha ‘very detrimental’, when referring to the education and development of [H] and her sister.

57. My reluctance not to immediately adopt the view that removal of [H] would be detrimental is perhaps tainted by what I find with regard to her parents' immigration history and behaviour. But this innocent child cannot be held responsible. To some extent the delay by the respondent in processing the application made in April 2009 does not help either.

58. I answer the first four questions framed in Razgar in the positive. The ultimate question is proportionality. With some hesitation, which I must resolve in favour of the best interests of [H], I find on balance that it would be disproportionate for [H] to have to leave the UK as a consequence of her parents and her younger sister being removed in order that the Secretary of State's legitimate prerogative and right to regulate and control immigration to the UK be maintained and achieved.

59. The UK would be in breach of its obligations under Article 8 (private life) with respect to H] if she was removed at this time. Her situation and circumstances of family life under Article 8 would be breached if her parents and younger sister were removed. The realty is that [H's] father, the appellant, and mother both with a deceitful and dreadful immigration history benefit from their daughter's Article 8 rights to private life.”

3

The SSHD's grounds of appeal contended that the judge had failed to show he considered the significance for his assessment of the best interests of the child of his finding that none of the family were lawfully settled or are British citizens; the fact that there would be no linguistic barriers to the children obtaining education in India; the fact that he had found the claimant and his wife would have no difficulty in re-establishing their family life in India; and the fact that their youngest daughter would have no problem in re-adjusting to life and school in India. In addition it was submitted that in attaching great weight to the assessments by H's head teacher and GP that it would seriously disrupt her education in the UK if she were required to return to India, the judge had failed to take into account that the right to education under Protocol 1 of the ECHR is a qualified right or to factor in his own acceptance that the Indian education system was good. It was also argued that in conducting the proportionality exercise the judge had failed to weigh in the balance the claimant's “appalling immigration history”.

4

In advance of the hearing the claimant's solicitors submitted further documents including further letters from H's head teacher, dated 21 July 2011 and 20 October 2011 respectively, a letter from the head teacher of T's school and school reports for 2010/2011 for both H and T.

5

At the hearing Ms White did not call any oral evidence but submitted a skeleton argument.

6

The crux of Ms Tanner's submissions for the SSHD was that the judge had erred in treating the eldest child's educational circumstances in the UK as effectively a “trump card” when deciding the Article 8 claim. So far as the likely position of the claimant and his family on return to India was concerned, they were a middle class family, there was no suggestion that the two children would not receive a good education in India: language was not a problem. As regards the judge's finding about disruption to H's education, he had failed to explain why the disruption would be detrimental to her educational development. The contents of the eldest child's private life in this case was essentially confined to school activities and friends made in or through school. H was not yet a teenager with a developed social life outside school or family. Although she had lived here six years, she had spent her first five years in India. The judge had erred by failing to attach weight to the fact that the claimant and his family were neither in the UK with lawful permission nor British citizens.

7

In amplifying her skeleton argument Ms White for the claimant submitted that the judge had not made any material error. His reasoning was consistent with the principles outlined by the Tribunal in E-A (Nigeria) [2011] UKUT 315 (IAC). He had looked at the evidence as a whole. He had conducted a fact sensitive enquiry and in relation to H was clearly impressed by the fact that she was a very bright child who had benefited enormously from her UK education. He had properly attached weight to the two reports on H by her head teacher and GP. It was open to the judge to find that it would be detrimental to uproot her “from the system and life in which she has now become embedded”. The judge had applied the guidance given by the Supreme Court in ZH (Tanzania) and by the Tribunal in LD. In EM (Zimbabwe) CG [2011] UKUT 98 (IAC) at paragraph...

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