TA (Sri Lanka) by her Litigation friend, AB v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Kitchin |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] EWCA Civ 260 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2018 |
| Docket Number | Case No: C5/2015/0818 |
[2018] EWCA Civ 260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (Immigration & Asylum Chamber)
Deputy Upper Tribunal Judge Hanbury
IA407782013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
and
Lord Justice Kitchin
Case No: C5/2015/0818
Mr Danny Bazini (instructed by JJ Law Chambers) for the Appellant
Mr Rob Harland (instructed by Government Legal Department) for the Respondent
Hearing date: 7 February 2018
On 25 March 2013 the appellant, a Sri Lankan national, who was born on 24 May 2002, applied to the respondent, the Secretary of State for the Home Department, for leave to remain in the United Kingdom outside the immigration rules, relying on her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as applied by the Human Rights Act 1998. This application was refused on 17 September 2013. The appellant appealed to the First-tier Tribunal (Immigration and Asylum chamber) which allowed her appeal by a decision promulgated on 19 September 2014 (First–tier Tribunal Judge Dineen). The Secretary of State then appealed to the Upper Tribunal (Immigration and Asylum Chamber) which allowed her appeal by a decision promulgated on 19 December 2014 (Deputy Upper Tribunal Judge Hanbury). The appellant now appeals to this court with permission granted by Elias LJ at an oral hearing on 3 November 2016, permission having been refused on the papers by Laws LJ.
The factual background
The factual background may be summarised as follows. The appellant first entered the UK on 27 August 2004. She was accompanied by her parents, who came here to study, and her brother. In August 2007 the appellant returned to Sri Lanka with her family. In November 2010 the appellant returned to the UK with her family, which now included a further brother. In January 2011 the appellant's parents and her two brothers returned to Sri Lanka, leaving her in the UK with her grandparents. As a result, at the time of her application, the appellant had been in the UK for an uninterrupted period of about 2 years and 10 months and by the time of the hearing before the First-tier tribunal, that uninterrupted period had grown to a little under 4 years, and for the last two of those years she had been cared for by her grandparents. Overall, she had been in the UK for about 7 years.
The appellant's parents divorced in 2013 and her brothers live with their father in Sri Lanka. Their mother, who also lives in Sri Lanka, suffers from a depressive disorder.
On 25 March 2013 the appellant made her application for leave to remain in the UK outside the immigration rules on the basis of her family and private life with her grandparents who are now, by order of the court, her special guardians.
The correct approach
There was no real dispute between the parties as to the approach to be adopted by the Court of Appeal on an appeal such as this. The appeal is against the determination of the Upper Tribunal. It is only if that determination contains an error of law that the Court of Appeal can allow an appeal from it. If the Upper Tribunal has properly directed itself as to the approach to be adopted on an appeal from the First-tier Tribunal, and has arrived at a conclusion that was open to it, the determination of the Upper Tribunal contains no material error of law, even if this court might have been more generous in its approach to the determination of the First-tier Tribunal: see Adedoyin v SSHD [2012] EWHC Civ 939 at [29].
In R (Iran) v SSHD [2005] EWCA Civ 982, Brooke LJ summarised at [9] the errors on points of law that will most frequently be encountered in practice:
“9. …
i) making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);
ii) failing to give reasons or any adequate reasons for findings on material matters;
iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) giving weight to immaterial matters;
v) making a material misdirection of law on any material matter;
vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.”
Where the Upper Tribunal finds an error of law then it may (but need not) set aside the decision of the First-tier Tribunal. If it does set aside the decision of the First-tier Tribunal then it must either remit the case to the First-tier Tribunal with directions for its reconsideration or re-make the decision: see s.12 of the Tribunals, Courts and Enforcement Act 2007. When permission to appeal to the Upper Tribunal has been granted, the parties should assume that the Upper Tribunal will, if it identifies an error on a point of law and is satisfied that the original decision should be set aside, proceed to remake the decision. In that event, the Upper Tribunal will consider whether to remake the decision by reference to the First-tier Tribunal's findings of fact, and it will generally do so save and in so far as those findings have been infected by any identified error or errors of law.
The decision of the First-tier Tribunal
The First-tier Tribunal identified the material parts of the appellant's case as these. First, it was her clear wish to remain in the UK. Secondly, in terms of her cultural identity, the appellant felt both Sri Lankan and British, but more British than Sri Lankan. Thirdly, the appellant's grandparents were eminently suitable as carers and they were devoted to the appellant, and she was devoted to them. Their relationship was one of mutual love and affection. Fourthly, the appellant was doing very well at school.
Then, after finding that the removal of the appellant to Sri Lanka would involve an interference with the strong family life that she was enjoying with her grandparents in the UK and that this interference would be consistent with the lawful aims of the respondent, the First-tier Tribunal addressed the issue of proportionality and reasoned as follows:
“31. To begin with the appellant's interests must be regarded as the primary consideration. That means not that they are a paramount consideration but they must be considered first.
32. I take into account that the appellant is clearly very happy in the UK.
33. I am satisfied that she would be greatly distressed by having to return to Sri Lanka.
34. I take into account that she has been in the UK for seven years of her 12 years of life so far and that she has been here for nearly five years since she was aged 7.
35. I take into account that her education is progressing very well in the UK and that it would be subject to serious disruption if she were to be removed now at the age of 12 years.
36. I take into account that she now has the benefit of being in a very stable family environment, whereas if she were to return to Sri Lanka she would have to be living with a parent who is separated from a stable family environment. If with her mother she would also be living with a parent not only is suffering from depression but also has expressed a wish that the appellant herself should actually remain in the UK rather than joining her in Sri Lanka.
37. I am satisfied in the circumstances which would prevail for her in that country so far as family life is concerned would be very significantly inferior to the corresponding circumstances in the UK.
38. I take into account that the appellant has spent a good part of her formative years in the UK with her grandparents and I take into account that while she has some knowledge of the Sri Lankan languages, her culture is now very firmly British and it would be a culture shock for her to go to Sri Lanka into completely different circumstances.
39. Taking all these matters together I find that the proportionality factor comes down firmly in favour of the appellant remaining in the UK and I find that it would be a disproportionate interference with the family life for her to be removed.”
The First-tier Tribunal concluded that this was a case involving compelling circumstances which required consideration outside the immigration rules.
The decision of the Upper Tribunal
In the Upper Tribunal, the respondent argued, inter alia, that the First-tier Tribunal had failed to have any or any adequate regard to the requirements of the immigration rules, had made plain errors in making its findings of fact and had failed properly to approach the question whether there were here compelling circumstances which justified a finding that removal would constitute a disproportionate...
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