PD and Others (Article 8 - Conjoined Family Claims) Sri Lanka

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeUpper Tribunal,Upper Tribunal Judge Bruce,THE HON. MR JUSTICE MCCLOSKEY,The Hon. Mr Justice McCloskey, President
Judgment Date17 Mar 2016
Neutral Citation[2016] UKUT 108 (IAC)

[2016] UKUT 108 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

The Hon. Mr Justice McCloskey, President

Upper Tribunal Judge Bruce

Between
PD
JR
NR
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr J Martin (of Counsel), instructed by Nag Law Solicitors

For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

PD and Others (Article 8 — conjoined family claims) Sri Lanka

In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.

DECISION AND REASONS (No 2)
INTRODUCTION
1

This is the decision of the panel to which both members have contributed. By our decision promulgated on 05 October 2015, we set aside the decision of the First-tier Tribunal (the “FtT”). That decision is annexed hereto at Appendix We hereby remake the decision of the FtT.

FACTUAL MATRIX
2

Borrowing from, and augmenting somewhat, our earlier decision we outline the salient facts in the following way. The Appellants, all nationals of Sri Lanka, are a family unit consisting of mother, father and son now aged 14 years. This appeal has its origins in a decision dated 23 August 2014 of the Secretary of State for the Home Department (the “Secretary of State”), refusing the applications of the Appellants for further leave to remain in the United Kingdom. By its determination promulgated on 15 January 2015, the First-tier Tribunal (the “FtT”) dismissed their ensuing appeal. The Appellants now appeal, with permission, to the Upper Tribunal.

3

The basic facts are brief and uncontroversial:

  • (a) The first-named Appellant, the father, was granted clearance to enter the United Kingdom as a student in respect of the period January 2005 to October 2006. The other two Appellants were granted entry clearance as his dependents. All three entered the United Kingdom on 19 January 2005.

  • (b) In respect of the period October 2006 to January 2010, all three Appellants were the beneficiaries of subsequent further grants of leave to remain.

  • (c) From February 2010 the Appellants had the status of unlawful overstayers.

  • (d) On 12 February 2013 an application for leave to remain invoking Article 8 ECHR was made.

  • (e) This application was refused by the Secretary of State's decision dated 30 April 2013 which, following reconsideration, was affirmed by the index decision noted above.

4

The father of the family was the only one of the three Appellants who testified before us. Elaborating on his witness statement, which he adopted in full, he explained that having entered the United Kingdom in 2005 he studied for a total period of seven years, achieving a qualification in Business Administration. Since then, during the past three years, his career has been static, being confined to the provision of occasional informal business advice to friends. The mother of the family has, recently, provided some informal and gratuitous beauty advice and services to close friends and family members. Neither has had any gainful employment since arrival in the United Kingdom. There is no evidence of any family income, illicit or otherwise. While the family have survived during a sojourn of some 11 years in the United Kingdom, how they have done so is not clear.

5

The father confirmed that the main focus of their claim is their son's education. The son has progressed successfully through the United Kingdom education system since the family's arrival in 200He is scheduled to undertake his GCSEs in September 2016. Since commencement of his second level education he has attended the same school. The family previously resided in Colombo, the capital city of Sri Lanka and would probably return to live there. Based on some evidently limited research into international schools in Colombo, the father has obtained some information about likely costs but none relating to curriculum. He asserted that their son has some familiarity with, but no fluency in, Sinhalese. At this stage of his education, the son's ambition is to qualify as a lawyer.

6

Taking into account the cross examination of the father and the submissions of the Secretary of State's representative, we can identify nothing contentious in the factual framework outlined above and shall proceed accordingly.

LEGAL ISSUES
7

In granting permission to appeal, Upper Tribunal Judge Perkins raised the question of whether “…… the rights of the third Appellant [the son] should have been considered first”. The arguments of the parties' representatives focused mainly on this issue together with the test of reasonableness enshrined in paragraph 276 ADE (1)(iv) of the Immigration Rules (hereinafter “the Rules”).

LEGAL FRAMEWORK
8

This has several components. We begin with paragraph 276 ADE of the Rules. This is one of an extensive series of provisions arranged in Part 7 in accordance whereof leave to remain in the United Kingdom may be granted by the Secretary of State. It was introduced with effect from 09 July 2012 and amended by HC532, with effect from 28 July 2014. The general subject heading is “Private Life”, while the immediate cross heading is “Requirements to be met by an applicant for leave to remain on the grounds of private life”. Paragraph 276 ADE (1)(iv) provides:

“The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application the Applicant: ….

(iv) Is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK.”

The ancestry of paragraph 276 ADE is worthy of note. It is one of several provisions which introduced new long residence rules. The “seven year rule” relating to children has a certain lineage, to which we now turn.

9

The first version was introduced in DP5/96, which required children to have been in the United Kingdom for ten years. This was reduced to seven years on 24 February 199The Immigration Minister (Hansard, columns 309/310) stated the following:

“Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad.

In future, the enforced removal or deportation will not normally be appropriate where there are minor dependent children in the family who have been living in the United Kingdom continuously for seven or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here ….”

10

DP5/96 was considered by the Court of Appeal in NF (Ghana) v SSHD [2008] EWCA Civ 906. There the Home Secretary accepted she was bound by DP5/96 as amended. At [39] the Court set out the correct approach to the Ministerial policy:

“For the future it seems to us inevitable that tribunals considering the impact of the Secretary of State's policy in relation to the passing of seven years residence on the part of a child of the family should:

  • (1) start from the position (the presumption) that it is only in exceptional cases that indefinite leave to remain will not be given, but

  • (2) go on to consider the extent to which any of or a balancing of all the factors mentioned in the 1999 policy modification statement makes the case an exceptional one.

    It is only in such a way that the various documents can be reconciled into a single policy.”

11

With effect from 09 December 2008, DP5/96 was withdrawn. This was accompanied by the following new Ministerial statement:

“The United Kingdom Border Agency is withdrawing DP5/96… The original purpose and need for the concession has been overtaken by the Human Rights Act and changes to immigration rules. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important factor to be taken into account by case workers when evaluating whether removal of their parents is appropriate…“The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the ECHR [European Convention on Human Rights] will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA. Withdrawing the policy will also prevent those overstaying or unlawfully present in the UK having the benefit of a concession which does not apply to those persons who comply with the Immigration Rules and remain in the UK lawfully.”

In EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 the Upper Tribunal stated:

  • “2. Guidance is also given on the assessment of the private and family life of a Zimbabwean national present in the United Kingdom for over 11 years with children born and/or resident most of their lives in the United Kingdom.

  • 3. In the absence of countervailing factors, residence of over seven years with children well-integrated into the educational system in the United Kingdom, is an indicator that the welfare of the child favours regularisation of the status of mother and children”.

12

Paragraph 276 ADE(1) (iv) of the Rules when first introduced, with effect from 09 July 2012, enunciated a rule which provided that the claims of children for leave to remain in the United Kingdom would succeed under the private life rubric of Article 8 ECHR if they could demonstrate a minimum of seven years continuous residence. The Ministerial “Statement of Intent” included the following, at [11]:

The...

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