Mohammed Butt v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice King,Lord Justice Henderson |
| Judgment Date | 28 March 2017 |
| Neutral Citation | [2017] EWCA Civ 184 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/2374 |
| Date | 28 March 2017 |
[2017] EWCA Civ 184
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
DEPUTY UPPER TRIBUNAL JUDGE PICKUP
AA/00149/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Lady Justice King
and
Lord Justice Henderson
Case No: C5/2014/2374
Rashid Ahmed (instructed by Amjad Malik Solicitors) for the Appellant
Zane Malik (instructed by Government Legal Department) for the Respondent
Hearing date: 16 March 2017
Approved Judgment
I. Overview:
This is an appeal by Mohammed Ejaz Butt from the decision and order of the Upper Tribunal ("UT") dated 30 April 2013. Deputy Upper Tribunal Judge Pickup dismissed the appellant's appeal against a decision of the Secretary of State in a letter dated 27 December 2012 to reject his claim for asylum and associated claims based on articles 2, 3 and 8 of the European Convention of Human Rights ("the ECHR") and challenge to directions issued under section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act") to remove him and his wife, Raheela Kausar, from the United Kingdom. After hearing the argument on behalf of the appellant, and retiring to consider it, the court informed the parties that the appeal would be dismissed and that our reasons would follow. This judgment sets out my reasons.
In the tribunals, the appeals of the appellant's two adult daughters, Smaher and Abeer, were allowed. The sole issue before this court was whether, in the light of the evidence about the extent that they depended on him and his wife, the judge erred when conducting the proportionality assessment under article 8 of the ECHR. It was submitted by Mr Ahmed on behalf of the appellant that, when considering the proportionality of removing the parents, the judge failed to take account of the full effect of that removal on their two daughters in the light of the evidence as to the degree of attachment and dependency of the daughters and their cultural background.
II. Factual and procedural background:
The appellant and his family are citizens of Pakistan. He is now aged 64. His wife is now aged 54 and is his dependant. They have four adult children, Adeel, Sehar, Smaher, and Abeer, now respectively aged 32, 31, 29 and 25 who are all in the United Kingdom. Sehar is married to an EU national exercising treaty rights in the United Kingdom and Adeel has indefinite leave to remain. Because the appeals of Smaher and Abeer were allowed in the tribunals they are not parties to this appeal, but, as I have stated, the way the Deputy Upper Tribunal judge assessed their position is an important factor in the determination of the issue that is before us.
The appellant, his wife, Smaher, and Abeer arrived in the United Kingdom on 7 July 2004. They had entry clearance as visitors which was valid until 12 August 2004. When their entry clearance expired, they did not leave the United Kingdom. They made no attempt to regularise their stay for over 8 years until 10 February 2012. On that date, they applied for leave to remain on human rights grounds relying on article 8 of the ECHR. Jumping forward in the chronology, the First-tier Tribunal ("FtT") rejected the appellant's explanations and excuses for not regularising his status which included that he had been acting on advice and had received threats from Pakistan including threatening phone calls in the United Kingdom 1 but found that, in not taking steps to regularise their position and making the claims they subsequently made, Smaher and Abeer were "subject to parental direction". 2
The family's human rights application was refused in a decision dated 20 November 2012. On 10 December 2012, they made the claims that were refused in the decision that, together with the decision to remove them pursuant to the Secretary of State's power under section 10 of the Immigration and Asylum Act 1999, has given rise to these proceedings. The section 10 decision carried a right of appeal to the Tribunal which the appellants exercised. The FtT, in a decision promulgated on 14 January 2013, dismissed the appellant's appeal but allowed an appeal on article 8 grounds by Smaher and Abeer. The appellant and the Secretary of State both appealed to the UT.
In a decision promulgated on 29 January 2013, the UT allowed the appeal by the appellant. The issue before the UT was precisely the same issue as that before us. UT Judge Kopieczek considered that, in the light of what the FtT judge had said in his determination about the extent of the dependency of the two daughters, it was not clear that he had considered the effect on them of their parents' removal. He set aside the FtT's decision and directed that it be remade and the parties make submissions as to what findings of fact could be preserved.
As to Smaher and Abeer, the FtT judge considered (at [30]) that they were "young people likely to make a positive contribution to the UK economy and the retention of their skills is in the public interest would be a real benefit to the United Kingdom". He stated (at [32]) that the time they had spent in the United Kingdom, "their Westernised development over eight years and what they have to offer the United Kingdom militate in favour of them remaining at present". He had earlier (at [13]) described Smaher's first class degree in Medicinal Chemistry with Pharmacology as an outstanding achievement and stated that she had also published work for the wider benefit of others, and referred (at [15]) to Abeer's statement where she set out her life in this country in terms of education and achievements, including a university place near her home to study Mathematics. The Secretary of State's appeal against that decision was dismissed by UT Judge Kopieczek.
III The tribunal's findings of fact:
It is only necessary to summarise those findings of the FtT which the UT preserved and which were thus operative when the UT remade the decision that are relevant to this appeal. The FtT judge found that Smaher and Abeer were "able, honest and reliable witnesses; effectively they remain under control of their parents, who have a significant say in their decisions; and will continue to play some role in their development". 3 The UT agreed that these findings should stand but stated that the conclusion to be drawn from them, in terms of whether the closeness and emotional ties of the family were such that removal of the parents would be disproportionate, remained open
The following factual findings were also preserved: 4 (i) the appellant and his wife decided to remain in the UK and went underground rather than regularise their status; (ii) the explanations and excuses of the appellant and his wife for not regularising their status which included that the appellant had been acting on advice and had received threats from Pakistan including threatening phone calls in the United
Kingdom were rejected; (iii) the findings in relation to health and cultural ties; and (iv) the findings as to the appellant's immigration history including his working in Saudi Arabia as an electrician from 1976 and the fact that his wife and children moved there from Pakistan in 1989. 5IV The tribunal's decision on proportionality:
The judge considered (see UT [10]) that the "crucial issue" was the article 8 proportionality balancing exercise. He stated that this was to be determined "on the circumstances of the appellant, his wife and family, taking into account the appellant's immigration history and their present circumstances". The judge referred (at [13]) to the witness statements of the appellant, his wife, Smaher, and Abeer made on 23 January 2013, two days before the hearing before UT Judge Kopieczek, and thus after the decision of the FtT, but did not refer to their contents.
In paragraph [15] the judge stated that the factors he had considered in the proportionality balancing exercise "include the following", and he then listed 25 factors. For the purposes of this appeal it is only necessary to summarise eight of them. Using the same letter in brackets as in the UT's decision, those that point against the removal of the appellant and his wife are:
(a) the removal of the appellant and his wife would be a significant interference with their relationship with their daughters at home …;
(l) the family has been a complete unit of parents and two daughters from their time in Saudi Arabia to their present time in the UK;
(o) there has been a close family relationship between the appellant and his wife…. and their daughters and son in the UK, in particular with the two adult daughters who continue to live in the family home;
(p) that the two daughter[s] in the home, although adults, have continued to rely on their parents and have thus far no independent life… [and that the two adult daughters] … have not worked and education has been prevented. Their parents continue to play a significant part in their lives"; and
(s) that there would be upset and a degree of sadness and perhaps distress to friends and family, and particularly the [two adult daughters] by the removal of the appellant and his wife from the UK.
After the reference to the upset, sadness and distress to friends and family and the suggestion on behalf of the appellants that "it would be devastating to the family" to have to leave their daughters behind, [15](s) concluded: "However, it should also be borne in mind that as adults the daughters are likely to be soon establishing an independent life, perhaps away from the family home, persuing work, education, or even marriage". The other factors in the list concerning the daughters are:
(r) the appellant and his wife will continue to play some role in the development of the two adult daughters who at present live...
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