Upper Tribunal (Immigration and asylum chamber), 2016-12-09, IA/02101/2015 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 09 December 2016 |
| Published date | 04 February 2021 |
| Hearing Date | 29 November 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/02101/2015 & Ors. |
Appeal Numbers: IA/02101/2015
IA/02102/2015, IA/02104/2015
IA/02105/2015, HU/00619/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/02101/2015
IA/02102/2015, IA/02104/2015
IA/02105/2015, HU/00619/2015
THE IMMIGRATION ACTS
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Heard at Birmingham Employment Centre |
Decision & Reasons Promulgated |
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On 29 November 2016 |
On 9 December 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE McCARTHY
Between
SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and
PHINDILE [M] (1)
BOGODILE [M] (2)
BONGUMENZI [M] (3)
NZAMA [M] (4)
DAVID [M] (5)
(NO ANONYMITY ORDER)
Respondents
Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr J Dixon, instructed by Paragon Law
DECISION AND REASONS
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This is the Secretary of State’s appeal to the Upper Tribunal and she is the appellant.
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On 19 September 2016, I decided the First-tier Tribunal had erred in law when it allowed the appeal on 15 September 2015. For convenience, my decision is annexed to this decision and it includes directions regarding the ambit of the issues to be remade.
The resumed hearing
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In order to remake the decision of the First-tier Tribunal, I resumed the hearing on 29 November 2016 and heard evidence from the first three respondents before hearing submissions.
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Prior to hearing the appeals, I re-read the original bundles of documents and read the additional 15-page bundle provided by the respondents in accordance with my directions.
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From a procedural point of view, it is relevant to record the following two matters.
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Although this is the Secretary of State’s appeal, because I am looking to remake the decision of the First-tier Tribunal I adopted the usual procedures of that Tribunal. Therefore, during the hearing I referred to the respondents as the appellants and the Secretary of State as the respondent, and heard submissions in the order they would have been given in the First-tier Tribunal. There was no objection to this approach. However, for the purpose of this written decision, I resume the roles that each have.
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In addition, Mr Richards agreed that the respondents could all remain in the hearing room during evidence. It was obvious why he agreed to this approach; he had no cross-examination for any of the respondents.
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The three respondents who answered questions all did so in English. They each adopted their witness statements. Mr Dixon asked some supplementary questions of the first and second respondents to clarify certain points and bring the evidence up to date. The majority of questions were asked of the lead respondent, who is the mother of the others.
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There is no need for me to repeat here what is contained in the documents provided, including the witness statements, and in oral evidence because the relevant parts will be discussed as I make my findings.
Relevant legal issues
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Before making my findings, I remind myself of the what is in issue. I am considering whether the respondents’ personal circumstances (that is the private and family lives they have established and enjoy in the UK) outweighs the public interest considerations. My findings are limited to the fourth and fifth Razgar questions.
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I add that in order to answer these questions, I must have regard to s.117B of the Nationality, Immigration and Asylum Act 2002 because it puts the public interest considerations on a statutory footing.
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) 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—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) 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—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) 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.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(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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I must also apply the approach to proportionality set out by the Supreme Court at paragraph 74 of Bank Mellat v Her Majesty's Treasury (No. 2) [2013] UKSC 39 (which is cited by the Supreme Court in Hesham Ali (Iraq) v SSHD [2016] UKSC 60 when providing guidance as to “Appellate decision-making” at paragraphs 39 to 50).
74. The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. …
Public interest considerations
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I begin by considering the statutory provisions of s.117B of the 2002 Act.
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The respondents concede they do not meet the requirements of the immigration rules. Because the immigration rules are the expression of effective immigration controls, this concession means that there is public interest in expelling the respondents in order to maintain those controls (s.117B(1) of the 2002 Act applied).
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The respondents are all able to speak English and the family group is financially independent because of the earnings the first three respondents from lawful employment. The issues that could arise from these factors, as expressed in ss 117B(2) and (3) do not arise here.
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This is not to say that there is no need for me to consider the economic well-being of the country. The provisions of s.117B are not exhaustive (see Forman (ss 117A-C considerations) [2015] UKUT 412). The respondents are not a burden on the taxpayer because they are permitted to work in the UK by the statutory extension of their leave under s.3C of the Immigration Act 1971. Although this means they have permission to work, they do not have a right to work in the UK. This is a factor that falls within public interest considerations because immigration control includes control of entry to the labour market.
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It is also without question that the fourth and fifth respondents if permitted to remain in the UK will be educated at public expense. The fact that there will be no additional expense to the public purse on the basis that a school place is already being provided does not remove such issues when assessing the public interest because there is an actual cost and if the respondents are not entitled to remain in the UK on any basis, then that cost should not be incurred by the UK.
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Section 117B(4)(a) requires me to give little weight to private life that is established whilst a person is in the UK unlawfully. This factor does not apply in these appeals because the respondents have been in the UK lawfully throughout the time they have been here. I mention, for the sake of clarity, that I am not considering at this juncture whether the fact the respondents have been lawfully in the UK is a factor that might outweigh the public interest considerations. All I am finding at this juncture is that it does not add weight to the public interest considerations.
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The next provision of the 2002 Act does, however, add weight to the public interest in expelling the respondents. I recognise the respondents have only ever had limited leave to be in the UK and that they have always been aware the period they can lawfully remain here is time-limited. The Court of Appeal in Rhuppiah v SSHD [2016] EWCA Civ 803 explained when an...
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