Upper Tribunal (Immigration and asylum chamber), 2017-05-02, [2017] UKUT 199 (IAC) (CS and Others (Proof of Foreign Law))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey, President, Deputy Upper Tribunal Judge Norton-Taylor |
| Status | Reported |
| Date | 02 May 2017 |
| Published date | 11 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Proof of Foreign Law |
| Hearing Date | 04 April 2017 |
| Appeal Number | [2017] UKUT 199 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
CS and Others (Proof of Foreign Law) India [2017] UKUT 00199 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 04 April 2017 |
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………………………………… |
Before
The Hon. Mr Justice McCloskey, President
Deputy Upper Tribunal Judge Norton-Taylor
Between
CS (India) and 4 others
(anonymity direction MADE)
Appellants
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
ANONYMITY
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Representation:
Appellants: In person, unrepresented
Respondent: Mr P Singh, Senior Home Office Presenting Officer
The content of any material foreign law is a question of fact normally determined on the basis of expert evidence.
DECISION
Introduction
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We hereby undertake the exercise of remaking the decision of the First-tier Tribunal (the “FtT”), this appeal having travelled via a relatively elaborate route through the United Kingdom legal system.
The Appellants
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Some basic understanding of the family unit comprised by the five Appellants is essential:
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The first Appellant, the father, is a national of India, a civil engineer by profession, now aged 42 years.
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The second Appellant, the mother, is a national of Pakistan, a BA graduate, now aged 39 years.
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There are three children of the family, all born in the United Kingdom. They are aged 8, 4, and 2 years respectively.
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The parents met for the first time in the United Kingdom and were married in this jurisdiction. The father of the family was lawfully resident in the United Kingdom during some seven years, from September 2003 to April 2010. The mother was lawfully resident here between September 2006 and December 2009. They were married on 09 October 2008.
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At this juncture it is of some significance to note the following, which is not contentious:
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Both the father and the oldest child of the family are nationals of India.
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The mother is a national of Pakistan.
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The second and third children do not have nationality of either India or Pakistan.
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None of the children is a British national.
The First Legal Challenge
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The first element of the elaborate litigation jigsaw in which the Appellants have become involved crystallised in July 2013 when they brought an application for judicial review challenging the decision of the Respondent, the Secretary of State for the Home Department (“the Secretary of State”), refusing their leave to remain application based on their Article 8 ECHR rights. Their judicial review challenge had a favourable outcome, giving rise to a consent order dated 11 April 2014 whereby the Secretary of State undertook to reconsider the decision challenged.
The Impugned Decision
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The challenge noted above generated the impugned decision, which is dated 01 July 2014. By this decision the refusal of leave to remain in respect of all five Appellants was maintained. The Appellants were, simultaneously, formally notified of their vulnerability to removal from the United Kingdom.
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It is necessary at this point to highlight the following, which is not contentious and is linked to [4] above:
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The Secretary of State is proposing to remove the father and oldest daughter to India.
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The Secretary of State is proposing to remove the mother and the other two children to Pakistan. In passing, while the Secretary of States written decision intimated an intention to remove the second child to India with her father, this was expressly modified by Mr Singh (representing the Secretary of State) on enquiry from the bench at the hearing.
It follows that if the Secretary of State’s removal decisions are lawful the family will be fragmented, subject to our assessment and determination of certain nationality issues below.
FtT Decision
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The FtT dismissed the appeals, which were pursued exclusively under Article 8 ECHR. It is appropriate to highlight the following passage in the Tribunal’s decision, at [27]:
“Accordingly for the purposes of the application and the appeal I proceed on the basis that all four Appellants ought to be treated as Indian nationals or as people who can be removed to India.”
As appears from what we have stated above, in tandem with what follows, this was a misconception.
Upper Tribunal Error of Law Decision
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The Upper Tribunal (“UT”) concluded that there was no error of law afflicting the decision of the FtT and dismissed the appeal accordingly. Unlike the FtT, the UT was alert to the family separation issue noted in [7] above. However, its decision did not really engage with the single facet of separation which was then acknowledged, namely that the mother would have to be removed to Pakistan. Nor did the decision grapple with the proposed removal destination of the second and third children.
Decision of the Court of Appeal
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On further appeal the Secretary of State ultimately conceded that the decision of the UT was unsustainable in law. The Statement of Reasons accompanying the order of the Court of Appeal dated 02 June 2016 records, in material part:
“… The decision of the Upper Tribunal is flawed to the extent that it did not fully consider the question of the immigration law of India.”
The court ordered that the appeal be remitted to a different constitution of the UT, with no findings of fact preserved.
Our Decision
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The framework of the exercise which we now undertake has been established by the decision making and litigation history which we have rehearsed. We highlight in particular [4] and [7] above. While two of the hallmarks of this appeal are the voluminous documentary evidence and the lengthy submissions of the two sides, we have disentangled from the bulk a single and fundamental question: will it be reasonably possible for the long established family life of these five Appellants to be maintained, or re-established, in the wake of the removal action which the Secretary of State is proposing to take? The answer to this question, in turn, provides the key to our resolution of the issues arising under Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”).
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The answer to the central question formulated above turns not on United Kingdom law. It is, rather, dependent upon the material provisions of the domestic laws of a foreign state, namely India: see [16] infra.
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It is unfortunate for the Appellants that at this advanced stage of their journey through the English legal system they no longer have legal representation. They explained to us that they could no longer afford it. It is clear from the various materials assembled that they were well served by their former legal representatives. Notwithstanding this handicap the mother and father acquitted themselves admirably, in both the compilation of documentary evidence and the crystallisation of certain issues at the hearing.
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Given the elongated history noted above it was a matter of some little surprise that the Secretary of State’s representative still did not have full and conclusive answers to certain important questions relating to the domestic laws of India and Pakistan. Mr Singh, very candidly, was driven to withdraw part of his written submission in consequence. We received no expert evidence on the laws of either of the foreign states concerned. Ultimately, both sides found themselves formulating arguments in relation to the meaning of the available evidence of the two legal systems under scrutiny which we shall address below.
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We preface our evaluation of the evidence with the following. As noted, it is common case that the Secretary of State’s removal plans will fragment this family. It will result in the father and eldest daughter being removed to India, while the mother and the other two children are removed to Pakistan. The Appellants’ case is that this will infringe their rights, individually and collectively, under Article 8 ECHR and, further, will be in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”). The central focus of this case has become whether, in the post-removal scenario outlined above, the mother and the two younger...
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