Upper Tribunal (Immigration and asylum chamber), 2018-01-18, IA/02980/2015 & Ors.

CourtUpper Tribunal (Immigration and Asylum Chamber)
Publication Date06 February 2018
Appeal NumberIA/02980/2015 & Ors.

Appeal Number: IA/02980/2015; IA/02986/2015;

IA/03000/2015; IA/02992/2015

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/02980/2015; IA/02986/2015;

iA/03000/2015; IA/02992/2015


Heard at Field House

Decision & Reasons Promulgated

On 4 December 2017

On 18 January 2018








(anonymity direction MADE)






For the Appellants: Mr J Martin, Counsel, instructed by Raj Law Solicitors

For the Respondent: Ms Fijiwala, Home Office Presenting Officer


  1. This is a remade decision following the identification of a material error of law in the decision of Judge of the First-tier Tribunal Haria (FtJ) promulgated on 2 October 2015. The FtJ’s decision, which allowed the appeals, was appealed to the Upper Tribunal by the respondent. A Deputy Judge of the Upper Tribunal found that the FtJ materially erred in law and, having proceeded to remake the appeals, dismissed them. The appellants were granted permission to appeal to the Court of Appeal. By way of a Consent Order it was agreed that the Deputy Judge materially erred in law and the matter was remitted to the Upper Tribunal to determine once again whether the FtJ’s decision contained a material legal error. Following an ‘error of law’ hearing on 19 September 2017 I found that the FtJ did materially err in law. The matter was adjourned to allow further evidence to be provided given the significant length of time since the FtJ’s decision.


  1. The underlying decisions giving rise to these appeals are those to remove the appellants, all national of Mauritius, from the UK pursuant to s.10 of the Immigration and Asylum Act 1999, their human rights claims under article 8 ECHR having been refused. Although these decisions are dated 12 January 2014 they appear to have been served on 08 January 2015.

  2. The following is a summary of the appellants’ immigration history and their human rights claims. The 2nd appellant (DOB [ ] 1972) entered the Republic of Ireland on 17 October 2004 as a student. Between this date and 2 November 2004 he travelled to the UK where he applied for leave to remain as a student. On 27 January 2005 his application was refused. Although he had a full right of appeal he did not exercise that right. On 11 May 2005 the 1st appellant (DOB [ ] 1981), who is the wife of the 2nd appellant, departed from Mauritius and entered the Republic of Ireland with her daughter, EM, the 3rd appellant (DOB [ ] 2001). They made their way into the UK on an unknown date. On 30 July 2009 the first three appellants were encountered by immigration officers at their home address. On 11 August 2009 the 2nd appellant was convicted of possessing false identity documents and sentenced to 4 months imprisonment. The appellants applied for leave to remain in the United Kingdom on article 8 grounds but the applications were refused without a right of appeal on 17 August 2010. The 4th appellant, the youngest daughter of the 1st and 2nd appellant, was born on [ ] 2010. Following judicial review proceedings the respondent reconsidered the human rights claims but maintained her decisions.

  3. The 1st appellant, with her husband and 2 minor children as dependents, appealed to the First-tier Tribunal. The FtJ’s analysis centred on the position of EM. The FtJ found that she was 3½ years old when she entered United Kingdom, that English was her first language and that she was thoroughly integrated into life in the UK through her school and the wider community, a point supported by reference to letters from members of their extended family, friends and colleagues as well as school reports. At that time she was in Year 9 and was preparing to choose her GCSE subjects. The FtJ found that if EM and her sister were to return to Mauritius it would “… be like going to a foreign country for both of them” as their knowledge of the creole language was basic and there would be difficulties in slotting back into the community and in entering school. The FtJ found that EM was at a critical period in her development and could ill afford such a setback. The FtJ specifically considered evidence contained in the Country of Origin Information Service (see COIS report dated 24 June 2014) indicating that the Mauritian primary and secondary education system was based on the British model and that primary education was free in principle at state institutions. The FtJ additionally noted that the parents of the 1st and 2nd appellant lived in Mauritius and that the appellants kept in regular contact with them. The FtJ found that the appellants could live with the 2nd appellant’s parents, at least initially, if returned to Mauritius.

  4. The FtJ provided extensive extracts from a number of cases considering the proper approach when assessing the best interests of children (such as EA (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC); MK (best interests of child) [2011] UKUT 00475 (IAC), EV (Philippines) and Others v SSHD [2014] EWCA Civ 874, and Azimi-Moayed and Others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC). At [53], having indicated that he had assessed the evidence as a whole and applied the principles established by those cases, the FtJ concluded that it would not be reasonable for EM to go back to Mauritius, that it was in her best interest to remain in the UK, and accordingly, that she met the requirements of paragraph 276ADE(1)(iv).

  5. The FtJ proceeded to consider the remaining appeals pursuant to article 8. She found that the 1st and 2nd appellants had established private lives in the UK and that their removal would constitute an interference with those private lives of sufficient gravity to engage article 8. In assessing the proportionality of such removal, the FtJ referred herself to sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). At [61] she considered the “somewhat chequered” immigration history of the 1st and 2nd appellants. The FtJ noted that they had been in the UK illegally for the duration of their residence, that they were both arrested for using fraudulently obtained documents and that the 2nd appellant was sentenced to 4 months imprisonment in August 2009. Both the 1st and 2nd appellants admitted using false documents to access employment and health care under the NHS. The 2nd appellant undertook 3 years of study, completed a plumbing course and worked as a plumber. Both the 1st and 2nd appellant worked in the UK despite having no permission. The 1st appellant gave birth on the NHS at “huge cost” and the 3rd and 4th appellants had the benefit of state funded education. The FtJ found that there was huge damage to the UK economy as a result of the 1st and 2nd appellants’ illegal employment. At [65] the FtJ reiterated her finding that EM was at a critical stage in her education and shared family life with her parents and sister. For these reasons, and having regard to the age of the children and their length of residence in the UK and their best interests, balanced against the public interest factors so identified, the FtJ concluded that the removal of the remaining appellants would constitute a disproportionate interference with their article 8 rights.

  6. The respondent sought permission to appeal this decision to the Upper Tribunal. The respondent contended that the FtJ failed to adequately identify why EM’s education was sufficient to render her removal unreasonable, and that the FtJ failed to give adequate weight to the public interest factors highlighted in section 117B.

  7. The matter came before Deputy Judge of the Upper Tribunal I A M Murry on 7 March 2016. The Deputy Judge uncovered a material error of law in the First-tier decision and re-made the decision dismissing the appeals. It is not necessary for me to consider in any detail the Deputy Judge’s decision. This is because the appellants were granted permission to appeal to the Court of Appeal by the Rt. Hon. Sir Stephen Richards in a decision sealed on 31 January 2017. In a consent order sealed on 14 July 2017 it was ordered that the appeal against the Deputy Judge’s decision be allowed and that the appeal be remitted to a freshly constituted Upper Tribunal for reconsideration. A statement of reasons accompanying the consent order indicated that the Deputy Judge may have erred in his reasoning in relation to the 3rd appellant and that the appeal should be allowed to the extent that the matter should be remitted to the Upper Tribunal for a de novo hearing.

  8. It was agreed by both representatives at the remitted Upper Tribunal hearing on 19 September 2017 that I was still at the “error of law” stage. Since the...

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