Upper Tribunal (Immigration and asylum chamber), 2016-01-06, IA/37383/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 06 January 2016 |
| Published date | 17 August 2016 |
| Hearing Date | 17 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/37383/2014 & Ors. |
Appeal No. IA/37383/2014
IA/37384/2014
IA/37387/2014
IA/37389/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/37383/2014
IA/37384/2014
IA/37387/2014
IA/37389/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 17 December 2015 |
On 06 January 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Between
MR MUHAMMAD MAIMOON WAHEED (first appellant)
MRS GUL-E-RAANA KALSOOM (second appellant)
MR MUHAMMAD MAHAD MAIMOON (third appellant)
MR ABDUL AAHAD MAIMOON (fourth appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and
Secretary of State FOR the HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms M Dogra of counsel
For the Respondent: Mr D Clarke, a Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is an appeal by the appellants against a decision of the First-tier Tribunal dismissing their appeals against a decision taken on 3 September 2014 to refuse their applications for leave to remain in the UK based on their private and family life.
Background Facts
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The appellants are citizens of Pakistan. The first appellant was born on 22 February 1982, the second appellant (his spouse) was born on 22 September 1981, and the third and fourth appellants (their children) were born on 25 April 2002 and 9 February 2012 respectively. They applied for leave to remain in the UK under the Immigration Rules HC395 (as amended) (the ‘Immigration Rules’) based on their private and family life. These applications were refused by the respondent on the basis that the appellants could not meet the requirements under the Immigration Rules and that there were no exceptional circumstances justifying leave outside of the Immigration Rules.
The Appeal to the First-tier Tribunal
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The appellants appealed to the First-tier Tribunal. In a determination promulgated on 2 April 2015, Judge Sweet dismissed the appellants’ appeals. The First-tier Tribunal found that none of the appellants could meet the requirements of the Immigration Rules under appendix FM in respect of family life. In respect of the claim to private life under paragraph 276ADE of the Immigration Rules the only relevant sub-section was (vi) but the judge was not satisfied that there would be very significant obstacles to their integration in Pakistan. In respect of exceptional circumstances the judge did not consider that there were any particular circumstances to be considered. The judge took into account the respondent’s responsibility under section 55 of the Borders, Citizenship and Immigration Act 2009 (‘s55’) to consider the best interests of the children finding that no exceptional circumstances arose to consider their claims outside of the Immigration Rules. The judge further found that even if Article 8 were considered outside the Immigration Rules it would not be disproportionate to remove the appellants.
The Appeal to the Upper Tribunal
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The appellants sought permission to appeal to the Upper Tribunal. On 2 June 2015 First-tier Tribunal Judge Frankish refused permission to appeal. On 5 August 2015 Deputy Upper Tribunal Judge Archer granted the appellants permission to appeal on the basis that it was arguable that the First-tier Tribunal judge had failed to properly consider the best interests of the children. Thus, the appeal came before me.
Summary of the Submissions
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The grounds of appeal focus on Muhammad Mahad Maimoon (hereafter ‘Mahad’). It is asserted that the judge failed to consider that it would be in the best interests of the child to return to Pakistan with his family and that the judge failed to take into account the relevant authorities. It is submitted that the judge made no adverse credibility findings which means that the judge found all the witnesses to be wholly credible. It is asserted that the judge did not refer to the respondent’s policy on assessing children who have been continuously resident in the UK for 7 years. It is submitted that there is one material provision of the Immigration Rules in the present context, namely paragraph EX.1(i)(cc). The central submission is that the judge failed to consider whether the respondent had discharged the duties imposed under s55. It is submitted that there is no reference to the statutory guidance. The material error is found at paragraph 35 of the decision where there is no assessment of the best interests of the child.
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In the alternative the grounds assert that the judge made errors in assessing the Article 8 appeal. The judge has failed to consider the impact on removal of the child. His private life deserved more anxious scrutiny in the circumstances.
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Ms Dogra submitted that there were 2 grounds – the best interests of the children has not been considered properly. Paragraph 35 of the decision contains the only reference to s55. The second ground is that the judge failed to consider Article 8 considering that there were no exceptional circumstances. The judge needed to consider s117B (6).
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The judge failed to apply Singh v SSHD: Khalid v SSHD [2015] EWCA Civ 74 (‘Singh and Khalid’) which was authority for the proposition that the concept of exceptional circumstances is not a threshold by which individual Article 8 considerations need to be carried out. The judge should have considered the appellants’ rights outside the Immigration Rules. There was a limited consideration under the Immigration Rules. At the date of the application the child was not in the UK for 7 years so there is no assessment under the Immigration Rules as to whether or not it would be in his best interests to return to Pakistan so factors in his best interests were never considered. She submitted that it is clear from the case law of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197(IAC) (‘Azimi Moayed’) and EV (Philippines) and Others v SSHD [2014] EWCA Civ 874 (‘EV (Philippines’) that once a child is in the UK for 7 years it is possible that it may not be appropriate for them to return. The best interests always have to be considered. They have not been considered under the Immigration Rules because the child did not have 7 years residence. In this case there were additional considerations that would have led to an independent assessment of Article 8. The risks and concerns were set out in the witness statement of the first appellant. Mahad came to the UK when he was 5 and started his education in the UK in which he has now been for 7 years. He has no ties with Pakistan which is a distant memory. He is doing very well at school. His formative years have been spent in the UK and if he is returned to Pakistan he would suffer serious set-backs. Mahad stated why he wished to remain in the UK. He says that his schooling is important and all his friends are in the UK. The letter shows he has reached an age where he has his own independent private life distinct and separate from his parents.
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Ms Dogra submitted that there must be some form of weighing exercise. The judge has failed to undertake a proportionality exercise. No consideration has been given to the guidelines in EV Philippines. If it is disproportionate to return Mahad to Pakistan then there are exceptional circumstances for the whole family as it would be disproportionate to separate a young child from his parents.
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Mr Clarke submitted that the reasons for refusal letter explained why the first and second appellants could not rely on Paragraph EX.1. Singh and Khalid was authority that the circumstances must render the Immigration Rules a disproportionate interference. He submitted that at paragraph 32 of the decision the judge dealt with paragraph 276ADE and at paragraph 35 dealt with the best interests of the children. S55 is a proportionality test and it was open to the judge to find that there were no circumstances meriting consideration outside the Immigration Rules. The judge at paragraphs 9-26 set out the evidence. It is clear that the judge was mindful of all the issues identified at paragraph 35 of EV Philippines. At paragraph 9 the judge set out the oral evidence of the first appellant. The judge set out in detail the education, friends, his age, the effect of a change in school etc. The judge took issue with the witness statements of the appellants. The judge disputed that there were no ties to Pakistan, the second appellant has family in Pakistan. She stayed with family in Pakistan for 22 days 2 months before the hearing. Mahad speaks Urdu contrary to the oral evidence. At paragraph 16 the judge finds that the family previously lived with the first appellant’s family. The judge sets out inconsistencies in relation to the first and second appellants working in the UK. The second appellant confirmed in oral evidence matters that were contrary to...
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