Upper Tribunal (Immigration and asylum chamber), 2019-11-11, HU/18036/2018 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 11 November 2019 |
| Published date | 29 January 2020 |
| Hearing Date | 17 October 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/18036/2018 & Ors. |
Appeal Numbers: HU/18036/2018
HU/18038/2018
HU/18042/2018
HU/18044/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/18036/2018
HU/18038/2018
HU/18042/2018
HU/18044/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 17 October 2019 |
On 11 November 2019 |
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
NA, SB, YS, YA
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Z. Hussain, Solicitor, Hubers Law
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
DECISION AND REASONS
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In a decision promulgated on 6 September 2019, I found that a decision of First-tier Tribunal Judge Bart-Stuart promulgated on 14 May 2019 involved the making of an error of law and set it aside, with certain findings of fact preserved. That decision may be found in the Annex to this decision. On 17 October 2019, I reheard the matter, to determine the best interests of the two child appellants, and to consider whether it would be reasonable to expect the third appellant, a “qualifying child” (see below), to leave the United Kingdom.
Factual background
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The full factual background is set out in my error of law decision. Briefly, the appellants are all citizens of Bangladesh. The first two appellants are husband and wife. The third and fourth appellants are their sons; AS, born on 21 July 2010, and YA, born on 19 October 2017. The first appellant (husband, father) entered as a visitor in 2005 and has remained here since. The second appellant (wife, mother) entered as a student in 2009, leave valid until 2012. She too has remained here since. Their two children were born here and have only known life in the United Kingdom. The judge reached a number of findings of fact, which I shall set out below, relating to the likely circumstances the family would face upon their return to Bangladesh, the medical needs of the third appellant, the linguistic skills of the children, and the overall family circumstances.
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I found that the judge’s analysis of the best interests of the children contradicted itself; at [44], the judge appeared to conclude that it would not be “unreasonable to expect the [third appellant] to relocate with his parents to the country of their nationality and culture.” By contrast, at [48], the judge said that, “the children’s best interests are to remain in the UK where they benefit from a good standard of education, medical, social and financial support…” These contrasting findings made difficult to understand the later basis upon which the judge was to find that it would be reasonable to expect the third appellant to leave the United Kingdom, for the purposes of section 117B(6) of the 2002 Act.
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In addition, when assessing the question of “reasonableness” the judge said at [53], “the conduct and adverse immigration history [of the parents] is relevant to the assessment of the public interest…” The judge appeared, therefore, to have ascribed significance to the immigration misconduct of both parents when determining the question of reasonableness, which was an error of law: see KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53.
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Having preserved the findings of fact reached by the judge, I directed that the matter be retained in the Upper Tribunal for consideration of the best interests of the children, and to determine whether it would be reasonable to expect the third appellant to leave the United Kingdom, for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
Legal framework
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This appeal was brought under Article 8 of the European Convention on Human Rights. The essential issue for my consideration is whether it would be proportionate under the terms of Article 8(2) of the Convention for the appellants to be removed, in the light of the family and private life they claim to have established here. In the present matter, the primary remaining public interest consideration is that set out in section 117B(6) of the 2002 Act.
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Section 117B(6) provides:
“(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
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As the third appellant has resided here for more than seven years, he is a “qualifying child”: see section 117D(1).
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It is settled law that the best interests of the child are a primary consideration when considering whether removal of an appellant under Article 8 would be proportionate, see ZH (Tanzania) [2011] UKSC 4 and Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10] per Lord Hodge.
Evidence and documents
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Mr Hussain relied exclusively on the evidence considered by the First-tier Tribunal initially. He did not apply under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce new evidence, for example in relation to developments which post-dated the findings of fact I preserved from the First-tier Tribunal. He did not call any of the appellants as witnesses, although the first, second and fourth appellants were in attendance at the hearing centre.
Discussion
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The First-tier Tribunal found that none of the appellants met the requirements of the Immigration Rules. Although Mr Hussain previously sought to challenge some of the factual bases upon which those findings were reached, I found that the judge’s findings were not irrational, perverse, or infected by some other error of law. This appeal turns on the position of AS, the third appellant, and whether it would be reasonable to expect him to leave the United Kingdom. To determine his best interests, and those of his brother, I must set out the factual matrix upon which that analysis must be based.
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At the outset of my analysis, it will be helpful to summarise the relevant preserved findings of fact from the First-tier Tribunal:
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The first appellant had worked previously in Bangladesh. The first and second appellants each have extended family in Bangladesh and there is family property there [43].
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There was no evidence of private life outside the family home. The main language spoken at home is Bengali Sylheti. The third appellant previously experienced language learning difficulties when he started school, which may have been attributable to the different language spoken at home [44].
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The third appellant had experienced a range of medical conditions relating to his ears, tonsils, and vitiligo. There was no evidence that any “curiosity and comment” attracted by the third appellant in Bangladesh would exceed that which he would experience in this country in any event [45].
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There was no evidence that the third appellant would be at any greater risk of bullying in Bangladesh than he would have been in this country [46].
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There would not be very significant obstacles to the integration of the first or second appellants upon their return to Bangladesh. The first appellant’s mother remains in Bangladesh; it was she who originally brought him to the UK, and she remains there. If it were the case that the first appellant had never worked in Bangladesh, as he had claimed, he must have had family support. Both the first and second appellants had acquired qualifications and work experience, and experience of life in this country, which would assist with them obtaining employment upon their return in Bangladesh. They claimed to be financially supported in this country by relatives here, and they had provided no credible explanation as to why that support would not be able to continue in Bangladesh, at least initially [47].
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An issue before the First-tier Tribunal had been whether the third appellant’s medical conditions rendered his return Bangladesh unreasonable. In relation to these issues, the judge found that he may not require grommets in the future but noted the medical diagnosis may change. There was no evidence that treatment would not be available in Bangladesh; the first appellant “appears to concede” that treatment would be available in cities such as Dhaka. All difficulties expressed by the family in relation to the children’s relocation to Bangladesh “can be overcome” [48].
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Although an international move, and a change in schools, would be disruptive for the third appellant, he remains in primary school and is some years away from transferring to secondary school. The third appellant would be travelling with his parents and within the family unit to join extended family in Bangladesh [55].
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Against that background, and without having applied to admit any new evidence, Mr Hussain submits that there remains an absence of finality concerning the diagnosis for the third appellant’s ear conditions. He submitted, without reference to any underlying evidence, that there is “no evidence” that the treatment...
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