Upper Tribunal (Immigration and asylum chamber), 2017-08-16, HU/05711/2015
| Jurisdiction | UK Non-devolved |
| Date | 16 August 2017 |
| Published date | 15 September 2017 |
| Hearing Date | 03 August 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/05711/2015 |
Appeal Number: HU057112015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05711/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3rd August 2017 |
On 16th August 2017 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
Naeem Muhammad
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Jarvis, Home Office Presenting Officer
For the Respondent: Mr J Plowright of Counsel
DECISION AND REASONS
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The Appellant appeals against the decision of First-tier Tribunal Judge Munonyedi promulgated on 31 October 2016, in which the Respondent’s appeal against the decision to refuse his application for leave to remain in the United Kingdom as a partner/parent/on the basis of private and family life dated 10 September 2015 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with Mr Muhammad as the Appellant and the Secretary of State as the Respondent.
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I found an error of law in Judge Munonyedi’s decision promulgated on 31 October 2016 following the first hearing in this appeal on 25 May 2017. The background to this appeal is set out in the error of law decision contained in the annex and will not be repeated here. The re-making of the appeal on article 8 grounds follows.
The appeal
Applicable law
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It is accepted in the present case that the Appellant cannot meet the requirements of the Immigration Rules for a grant of leave to remain, such that those provisions are not set out here. When considering an individual’s right to respect for private and family life in accordance with Article 8, then the usual step-by-step approach set on in Razgar [2004] UKHL 27, applies as follows:
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Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
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If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
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If so, is such interference in accordance with the law?
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If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
If so, is such interference proportionate to the legitimate public ends sought to be achieved?
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In making the proportionality assessment under Article 8, the best interests of the child, in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009, must be the primary consideration, as confirmed in the judgment of Lady Hale to that effect in paragraph 33 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. She stated that “This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations” such as the need to maintain firm and fair immigration control and an individual’s immigration history. The bests interests of the child have been considered further in many cases, including, inter alia, by the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 and by the Upper Tribunal in EA (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC); MK (Best Interests of the child) [2011] UKUT 00475 and Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00107 (IAC).
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The best interests of the child were considered by the Court of Appeal in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, wherein Lord Justice Clarke set out the factors relevant to an assessment of the best interests of children in paragraph 35 as follows:
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age;
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the length of time that they have been here;
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how long they have been in education;
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what stage the education has reached;
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to what extent they have become distanced from country to which it is proposed that they return;
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how renewable their connection with it may be;
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to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and
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the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British Citizens.
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Lord Justice Clarke went on in paragraphs 36 and 37 to state:
“[36] In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child’s best interest that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child’s best interest to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
[37] In the balance on the other side there falls to taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex-hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully.”
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When considering the public interest as part of the assessment of proportionality for the purposes of Article 8 of the European Convention on Human Rights, I am required by section 117A of the Nationality, Immigration and Asylum Act 2002 (introduced by section 19 of the Immigration Act 2014) to have regard in all cases to the considerations listed in section 117B of the same act. Section 117B provides as follows:
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The maintenance of effective immigration control is in the public interest.
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It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English –
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are less of a burden on taxpayers, and
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are better able to integrate into society.
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It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –
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are not a burden on taxpayers, and
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are better able to integrate into society.
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Little weight should be given to –
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a private life, or
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a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
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Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
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In the case of a person who is not liable to deportation, the public interest does not require a person’s removal where –
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the person has a genuine and subsisting parental relationship with a qualifying child, and
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it would not be reasonable to expect the child to leave the United Kingdom.
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The Court of Appeal considered the application of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 in MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705, holding that when considering the question of reasonableness, wider public interest considerations must be taken into account. The fact that a child has been in the United Kingdom for seven years would need to be given significant weight in the proportionality exercise, first because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes a starting point the leave should be granted unless there were powerful reasons to the contrary. The best interests of a child must be considered, with the same principles applying as those set out in EV (Philippines), but are not determinative of the question of reasonableness.
Explanation for Refusal
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The Respondent refused the Appellant’s application on the basis that he did not meet the requirements of the Immigration Rules and there were no exceptional circumstances for a grant of leave to remain outside of the Immigration Rules. The Respondent took into account the best interests of the Appellant’s eldest child pursuant...
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