Upper Tribunal (Immigration and asylum chamber), 2015-11-19, [2015] UKUT 674 (IAC) (Treebhawon and others (section 117B(6)))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey, President, Upper Tribunal Judge Frances |
| Status | Reported |
| Date | 19 November 2015 |
| Published date | 10 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 28 October 2015 |
| Subject Matter | section 117B(6) |
| Appeal Number | [2015] UKUT 674 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC)
THE IMMIGRATION ACTS
|
Heard at Field House, London |
Decision Promulgated |
|
On 28 October 2015 |
|
|
|
………………………………… |
Before
The Hon. Mr Justice McCloskey, President
Upper Tribunal Judge Frances
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SOOREEADO TREEBHAWON, KJUL TREEBHAWON,
ATISH TREEBHAWON, AKASH TREEBHAWON AND
ADESH TREEBHAWON
Respondents
Representation:
Appellant: Ms A Fijiwala, Senior Office Home Presenting Officer
Respondents: Mrs H Arrif, Solicitor, of Arden Solicitors Advocates
-
Section 117B (6) is a reflection of the distinction which Parliament has chosen to make between persons who are, and who are not, liable to deportation. In any case where the conditions enshrined in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 are satisfied, the section 117B(6) public interest prevails over the public interests identified in section 117B (1)–(3).
-
Section 117B (4) and (5) are not parliamentary prescriptions of the public interest. Rather, they operate as instructions to courts and tribunals to be applied in cases where the balancing exercise is being conducted in order to determine proportionality under Article 8 ECHR, in cases where either of the factors which they identify arises.
DECISION AND REASONS
Introduction
-
These conjoined appeals raise interesting questions relating to the construction and application of section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which, so far as the panel is aware, have not previously been the subject of adjudication by the Upper Tribunal.
The Appellants
-
The Appellants are a family unit consisting of father, one daughter and three sons. All are nationals of Mauritius. The father is aged 44 and the children’s ages range from 11 to 17. Their immigration history is as follows:
(i) The father claims to have entered the United Kingdom, via Dublin, in 2003.
-
In November 2007 the oldest child was given leave to enter the United Kingdom and remain for a period of six months. It appears that both she and the children’s mother entered around this time.
-
In February 2008, in response to formal overstaying measures, the father confirmed that his wife and oldest child were in the United Kingdom, representing that they would be returning to Mauritius where their other three children resided.
-
On 04 August 2010 the second and third of the four children entered the United Kingdom.
-
On 26 December 2011 the youngest of the four children entered the United Kingdom as a visitor.
[There is no mention in the papers of the mother of the family postdating this event.]
-
On 01 February 2013 the Appellants’ human rights application was refused.
-
On 03 April 2013 further representations were made on the Appellants’ behalf.
-
On 10 June 2014, in response to a request for clarification, the Appellants’ representatives furnished further submissions.
-
By a decision dated 24 October 2014 on behalf of the Secretary of State for the Home Department (the “Secretary of State”), the Appellants’ further human rights application was refused.
Appeal Proceedings
-
The latter decision was challenged by the Appellants by appeal to the First-tier Tribunal (the “FtT”). By its decision promulgated on 17 July 2015, the FtT allowed the appeals “under the Immigration Rules and under Article 8”. Upon scrutiny, the FtT decided that the appeal of the oldest of the four children succeeded under paragraph 276 ADE(1) of the Rules, while the appeals of the other four family members succeeded under Article 8 ECHR outwith the Rules.
-
The Secretary of State applied for permission to appeal on the following two grounds:
(i) The second Appellant could not satisfy paragraph 276 ADE of the Rules, given the date of the decision, giving rise to a free standing error of law. This is allied to a further contention that this error infected the FtT’s Article 8 decision in respect of the other four family members.
(ii) The FtT further erred in law in treating section 117B(6) of the 2002 Act as determinative of the public interest question, namely the issue of proportionality under Article 8(2) ECHR and failing to apply the other public interest provisions of the section.
The latter formulation is ours. Permission to appeal was granted on both grounds.
First ground of appeal: the Immigration Rules issue
-
At the material time, paragraph 276 ADE of the Immigration Rules provided:
“276ADE (1). 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 application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004."
The history, in brief, is that on 09 July 2012, pursuant to HC 194, the Immigration Rules were revised in respect of applications for leave to remain on the ground of private life under Article 8 ECHR (per paragraphs 276 ADE – 276 DH), applications for entry and stay based on family life under Article 8 (Appendix FM) and claims based on Article 8 in the context of deportation (paragraphs 398 – 399B).
-
These provisions of the Rules have generated much jurisprudence during the last two years. In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised that a claim based on Article 8 can, in principle, succeed either under the prescriptive Article 8 regimes within the Rules or outwith the Rules, residually. In Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558, the Court of Appeal espoused the test of “compelling circumstances” in respect of claims outwith the Rules: see [44] and [77]. In MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985 the Court of Appeal, in effect, disapproved the suggestion in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), at [29], that there is an intermediate hurdle to be overcome prior to consideration of Article 8 claims outwith the Rules: per Aikens LJ at [129].
-
In the Secretary of State’s decision it was noted that the longest of the sojourns of the four children [the oldest, the second Appellant] in the United Kingdom was six years and five months. As the minimum sojourn prescribed by the relevant provision of the Rules, namely paragraph 276 ADE (1)(vi) is seven years, it was concluded that the four childrens’ Article 8 claims under the Rules must be refused.
-
In considering the appeal of the oldest child, the FtT stated:
“The only issue ………. is whether it would be reasonable to expect [this child] to leave the United Kingdom she being under the age of 18 years and having lived continuously in the United Kingdom for seven years. (It is accepted that at the date the Respondent made her decision [this child] had not been living continuously in the United Kingdom for seven years.)”
[Emphasis added.]
The Judge’s ultimate finding was that it would not be reasonable to expect this Appellant to leave the United...
To continue reading
Request your trial