Upper Tribunal (Immigration and asylum chamber), 2016-05-03, IA/33344/2014 & IA/21184/2013
| Jurisdiction | UK Non-devolved |
| Date | 03 May 2016 |
| Published date | 02 May 2017 |
| Hearing Date | 22 February 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/33344/2014 & IA/21184/2013 |
Appeal Numbers: IA/33344/2014
IA/21184/2013
IAC-FH-NL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/33344/2014
ia/21184/2013
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 22 February 2016 |
On 3 May 2016 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY
Between
Secretary of State for the Home Department
Appellant
and
shamaila ashraf
muhammad bin ashraf
(anonymity direction NOT MADE)
Respondents
Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondents: Dr Morgan, instructed by Morgan Mark Solicitors
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-Tier Tribunal. I find that no particular issues arise on the facts of this case that give rise to the need for a direction. For this reason no anonymity direction is made.
DECISION AND REASONS
1. The Appellant in this appeal is the Secretary of State and the Respondents were the Appellants before the First-tier Tribunal. For the sake of clarity I refer to the Appellant in this appeal as the Secretary of State and the Respondents as the Claimants respectively.
2. The first Claimant is the mother of the second Claimant. She is a national of Pakistan as is her son. They arrived in the United Kingdom in March 2010 and she had entry clearance to accompany her parents valid from 11 June 2008 until 11 June 2010. The second Claimant had a visa to accompany her for two years. On 18 May 2010 the first Claimant made an application for further leave to remain. That application was refused and her appeal was heard by Immigration Judge Gillespie on 17 November 2010. The appeal was dismissed. On 11 May 2012 the first Claimant made a further application for leave to remain on the basis of her rights under Article 8 ECHR. On 19 May 2013 her application for judicial review was compromised by way of a consent order in which the Secretary of State agreed to reconsider her application. The application was refused on 19 August 2014.
3. The Claimants appealed against that decision and the appeal was heard by First-tier Tribunal Judge George who allowed their appeals in a decision promulgated on 1 April 2015. She allowed the appeals under Article 8 of the European Convention on Human Rights. The Secretary of State took issue with that decision and sought permission to appeal on the basis that the judge failed to consider the Immigration Rules as an expression of the views of the Secretary of State and adopted a haphazard approach towards Section 117. It was also said that the principles set out in EV (Philippines) & Others v Secretary of State for the Home Department [2014] EWCA Civ 874 were not properly applied and that the judge failed to have regard to the guidance of the Tribunal in Azimi-Moayed & Others with regard to the best interests of the child. The fourth ground is that the judge failed properly to make findings in accordance with the case of Devaseelan v Secretary of State (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702.
4. Permission to appeal was granted by First-tier Tribunal Judge Cruthers on the basis that arguable errors of law had arisen in relation to the alleged failure of the First-tier Tribunal to factor into the assessment whether the appeals could have succeeded pursuant to the new Rules. It was also considered arguable that the First-tier Tribunal had erred in disregarding the first Claimant’s immigration history in the assessment in relation to the second Claimant.
5. The case came before the Upper Tier Tribunal in order to establish whether or not there was an error of law in the decision of the First-tier Tribunal. The hearing took place on 28 September 2015. I determined that there was an error of law in the decision of the First-tier Tribunal. My findings were at [26] to [30]:
“26. The first Claimant entered the UK on 6 March of 2010 and her visa was valid until 11 June 2010. The second Claimant also had a visa which was valid for two years. It is not clear from the papers when exactly it expired although I note the Judge Gillespie stated it was in mid-2012. The first Claimant made an application for leave to remain on 18 May 2010 which was refused on 6 August 2010. She appealed in time and her appeal was dismissed on 17 November 2010. She did not apply for further leave to remain until 11 May 2012. Hence since the expiry of her leave under section 3C of the 1971 Act on 18 January 2011 she has been here unlawfully. In AM (S 117B) Malawi [2015] UKUT 0260 the Upper Tribunal held that a person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. It is clear therefore, that the Claimants private lives in the UK were established whilst they were here either unlawfully or precariously. The Judge was obliged therefore to have regard to the considerations in section 117B (4) and (5) and did not do so. The Judge did not identify and analyse the provisions concerned. It is not possible to infer that it was conducted. The Judge refers at paragraph 38 of the decision that the first Claimant was an overstayer but concludes that because she was actively seeking lawful leave this was not to be regarded as a “countervailing consideration of sufficient force to outweigh the detailed factors” to which she had already referred. There was no acknowledgement in this passage or otherwise that the entirety of the Claimants’ private life in the United Kingdom was established during a period when their immigration status was precarious or unlawful. This was clearly a material error of law because had the Judge properly applied the relevant provisions and conducted the required exercise she would have been obliged to find that little weight should be accorded to the Claimant’s private lives.
27. Grounds 2 and 3 can be dealt with together as they relate to the First-tier Tribunal’s analysis of the best interests of the second Claimant. Ground 2 asserts that the First-tier Tribunal did not assess the best interests of the child in the context of the proper factual matrix, namely that the first Claimant did not have the right to remain in the UK. Ground 2 asserts that the First-tier Tribunal erred in failing to have regard to the young age of the second Claimant in the proportionality exercise.
28. It is clear from the consistent jurisprudence of the higher courts that the best interests of a child are an integral part of the proportionality assessment under article 8 ECHR and a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent (ZH (Tanzania [2011] UKSC4, Zoumbas v Secretary of State for the Home Department [2013] UKSC 74)). Further, the best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent (EV (Philippines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874).
29. The First-tier Tribunal stated at paragraph 37, in considering the second Claimant’s best interests, “the fact that the second appellant is in the UK unlawfully is not his making and I have taken that into account when coming to this conclusion”. I do not consider this to be a misdirection in the light of the case law summarised above. The Judge is, as I understand it, stating that the second Claimant is not to be blamed for his adverse immigration history in an assessment of his best interests. That is a correct statement of the law.
30. However, in failing to acknowledge that the new Rules should be given greater weight than as merely a starting point for the consideration of proportionality and in further failing to find that little weight should be accorded to the Claimants’ private lives, the Judge did not give proper weight to the need to maintain immigration control in pursuit of the economic well-being of the country. The Judge did not assess whether it was reasonable to expect the second Claimant to follow the first Claimant to the country of origin applying the proper public interest considerations.”
The Hearing
6. At the resumed hearing I received documentation in the form of a further bundle from the Claimants, a re-amended chronology and skeleton arguments from Dr Morgan and Mr Melvin. I heard evidence from the first Claimant and her mother which I summarise here.
7. Dr Morgan called Ms Ashraf and she adopted her witness statements in the Claimants’ bundles. She said that she was aware that her family were hoping to settle in the United Kingdom in 2006 and 2007 and she did not want to come with them because she was in love and wanted to stay with her boyfriend. She met him in college and decided to marry but their families were against it and they decided to run away from home. Her boyfriend did not seek the approval of his family and it was...
To continue reading
Request your trial