Upper Tribunal (Immigration and asylum chamber), 2015-06-16, IA/05906/2014
| Jurisdiction | UK Non-devolved |
| Date | 16 June 2015 |
| Published date | 27 August 2015 |
| Hearing Date | 29 May 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/05906/2014 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05906/2014
THE IMMIGRATION ACTS
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Heard at Glasgow |
Decision and Reasons Promulgated |
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On 29 May 2015 |
On 16 June 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AB
(ANONYMITY DIRECTION MADE)
Respondent
Representation:
Appellant: Mr S Winter, of counsel, instructed by Gray & Co., Solicitors
Respondent: Ms C Johnstone, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. The anonymity direction made earlier in these proceedings is preserved because the appeal focuses on the circumstances of two young children.
2. The Secretary of State for the Home Department (the “SSHD”) brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal (the “FtT). This is an appeal by the SoS against a decision of FtT promulgated on 2 April 2014, which allowed the Appellant’s appeal and held that it was contrary to Article 8 of the European Convention on Human Rights (the “ECHR”) to remove the Appellant and his family to Pakistan.
Background
3. The Appellant is a national of Pakistan, born on 13 May 1982. The Appellant and his wife (SA) arrived in the UK on 24 July 2006 with visit visas valid until 24 January 2007. They have remained in the UK without leave since then. They have two children, RA born on 11 May 2007 and AA born 14 May 2009. The Appellant, his wife and both children are citizens of Pakistan.
4. On 6 July 2012, the Appellant made an application for leave to remain in the UK, claiming that removal would breach Article 8 ECHR. His application was refused on 20 January 2014, when the SSHD made a decision to remove the Appellant as an illegal entrant.
FtT Decision
5. The Appellant appealed to the FtT successfully. It was conceded that the Appellant could not fulfil the requirements of the Immigration Rules. The judge considered the circumstances of the children, RA and AA and found that the needs of the children were such that the SoS’ decision to remove the all members of the family unit infringed their rights under Article 8.
6. Permission to appeal was granted in the following terms:
“The judge has made clear findings as to the current state of the elder child. The Article 8 case turned on the best interests of the children. An arguable error of law has arisen in relation to findings as to the children and the context of the spectrum of objective evidence to which the Respondent has drawn attention.”
7. In a determination dated 20 August 2014, Upper Tribunal Judge Dawson set aside the FtT’s decision finding that a material error of law had been made, stating inter alia
“It seems to me that the judge carried out an incomplete exercise and permitted the best interests of the children to dictate the outcome of the appeal without a proper analysis of the factors militating against such an outcome”.
In other words, an inadequate balancing exercise had been conducted.
It was further directed that the decision be remade by the Upper Tribunal. I am reminded by the error of law decision to give effect to Section 117B(vi) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) and I note further the statement:
“RA will be a qualifying child by virtue of his length of residence in the United Kingdom.”
8. Although the FtT’s decision was set aside there was no criticism of her findings of fact in relation to the children. In essence, they are that RA has been diagnosed with autism and that although RA’s parents have family members in Pakistan, none of those family members, at present, has the skills necessary to communicate with RA and “handle” him. The FtT noted that RA has difficulty relating to strangers, that he would view his relatives in Pakistan as strangers and that his quality of life would be adversely affected if he was returned to Pakistan because of his inability to understand and deal with a significant change in environment, culture and language. RA has poor communication skills. The FtT expressed concerns that RA’s younger brother, AA, was too young to have received a formal diagnosis of autism but has displayed developmental delays and early indicators of an inability to settle, which indicate that he will require additional care and structured support to pursue the ordinary activities of daily living.
The Hearing
9 This case called just after 2pm on 29 May 2015. Counsel for the Appellant stated that there were two problems with proceeding. The first was that the Appellant and his wife were present and were ready to give evidence, but the Appellant’s wife required an Urdu interpreter. Although an interpreter had been requested, none was available. The second was that parties’ agents anticipated that by the time an interpreter could be found, there would be insufficient time left in the day to deal with this case. Counsel told me that his intention was solely to have the Appellant and the Appellant’s wife adopt the witness statements which were before the first tier tribunal, so that each of them could then be offered for cross examination of the Home Office presenting officer.
10 The Home Office presenting officer told me that it was her hope that she would be able to adduce certain evidence about the Appellant’s family circumstances in cross examination.
11 When I reviewed the file, I could see that both parties had lodged Rule 15(2A) notices, but those Rule 15(2A) notices relate to documents in the inventories of productions now lodged. Those inventories of productions contain documentary evidence, case law and background materials. They do not contain witness statements. No notice had been given that either party intended to lead oral evidence, nor had any Rule 15(2A) application been made for the admission of evidence. The SSHD had neither cited nor brought any witnesses to court and had relied solely on the voluntary attendance of the Appellant and his wife. If they had chosen not to come today there would be no prospect of cross examination. The Home Office presenting officer argued that as the FtT’s decision had been set aside, the only way to carry out the necessary fact finding exercise would be to take oral evidence from the Appellant and his wife.
12 I refused to delay this case any further. No Rule 15(2A) notice had been intimated to enable either party to lead oral evidence. The determination of Upper Tribunal Judge Dawson dated 20 August 2014 set aside the FtT’s decision and found no error of law in its findings of fact. The error of law diagnosed lay in a failure “…to consider the interests of the Appellant’s children in the context of a proportionality assessment of all the factors weighing in favour of the claimant against the public interest”.
13. I considered the documentary evidence which had been lodged addresses the most important issues. This consists of:
(i) The Home Office PF1 bundle;
(ii) The witness statements (for the Appellant and his wife) which were before the first tier tribunal;
(iii) Two inventories of productions for the Appellant, addressed specifically to the Upper Tribunal;
(iv) A list of authorities for the Appellant; and
(v) An inventory of productions for the Respondent containing background materials.
14. Ms Johnstone reiterated the Secretary of State’s challenge, arguing that while the autism of the children is a compassionate factor in the childrens’ favour this does not equate to a disproportionate interference with the right to respect for a private or family life. She argued that it would not be unjustifiably harsh for this family to remove to Pakistan - where there is already a network of support available from family members. She relied on background materials to say that assistance for families with children with Autism exists in Pakistan and would be available to the Appellant and his family.
15 Mr Winter relied on the findings of the Judge in relation to the children and argued that to carry out the balancing exercise, one should start with the fact that RA is a qualifying child under Section 117B(vi) of the 2002 Act; the Appellant is not a person liable to deportation; because of his needs, it would not be reasonable to expect RA to leave the United Kingdom; and would be unduly harsh to force a young child with autism to face the distress of the upheaval of removal. It was contended that the public interest is outweighed by the best interests of the children, giving rise to a disproportionate breach to a right to respect for private life.
Findings of Fact
16 The Appellant’s oldest child...
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