Upper Tribunal (Immigration and asylum chamber), 2023-03-23, HU/01691/2021 & HU/01764/2021
| Appeal Number | HU/01691/2021 & HU/01764/2021 |
| Hearing Date | 10 January 2023 |
| Published date | 12 April 2023 |
| Date | 23 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case No: UI-2022-000721 UI-2022-000722 |
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First-tier Tribunal No: HU/01691/2021 HU/01764/2021 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-000721 UI-2022-000722 |
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First-tier Tribunal No: HU/01691/2021 HU/01764/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 23 March 2023
Before
UPPER TRIBUNAL JUDGE HANSON
Between
TS
KS
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Howard, Solicitor.
For the Respondent: Mr Gazge, a Senior Home Office Presenting Officer.
Heard at Birmingham Civil Justice Centre on 10 January 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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In a decision promulgated following a hearing at Birmingham CJC on 6 October 2022 the Upper Tribunal found a judge of the First-tier Tribunal had erred in law, set that decision aside with preserved findings, and listed the appeal for a substantive hearing to enable it to substitute a decision to allow or dismiss the appeal, which has come before me today.
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TS was born on 23 August 2005 and is nearly 17 years 5 months of age at the date of hearing. KS was born on 5 March 2003 and is nearly 20 years of age. They are both the biological children of their sponsor who is their father (‘the Sponsor’).
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There are a number of findings from the First-tier decision relating to the relationship between TS, KS and their father, the Sponsors immigration history, the circumstances of TS and KS in so far as they are living in Damascus with their mother and sibling, the First-tier Judge’s findings in relation to the Sponsors input and support given to TS and KS despite his not having seen them since 2010, and the inability of TS and KS to succeed under the Immigration Rules.
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The First-tier Tribunal judge noted the appellant’s father had married twice and that the appellants are children from his first marriage. The Sponsor went to work in the UAE in 1992, where he lived with his second wife and their children until 2018, with the appellants, their mother, and other siblings living in the family home in Damascus in Syria. The Sponsor’s second wife and their children have joined him in the United Kingdom and were granted status in 2019.
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It is not disputed that the Sponsor, did not return to Syria after 2010 which was the last time he visited the appellants and saw them face-to-face, although there is evidence that contact has been maintained through modern means of communication since. At the date of the last visit the appellants will have been 5 and 7 years of age respectively living in a household with their mother and four siblings, although their brother was subsequently killed as a result of an incident between the warring factions in Syria.
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The application for the appellants to come to the United Kingdom was made pursuant to paragraph 352D of the Immigration Rules. That reads:
352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has refugee leave or refugee permission to stay are that the applicant:
(i) is the child of a parent who has refugee leave or refugee permission to stay granted under the Immigration Rules in the United Kingdom; and
(ii) (a) is under the age of 18; or
(b) is over 18 and there are exceptional circumstances (within the meaning of paragraph 352DB);
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of their habitual residence in order to seek asylum; and
(v) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention (as defined in section 36 of the Nationality and Borders Act 2022) if they were to seek asylum in their own right; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.
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It is not disputed the Sponsor has been granted refugee status as he would have been in accordance with the Secretary of State’s policy for those seeking international protection from Syria.
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The reason the applications under paragraph 352D failed is because it was found the appellants cannot be viewed as part of their father’s family unit when he left the UAE in 2018 to come to the UK. The Sponsor had been living and working in the UAE since 1992 with his second wife and their children, had not visited Syria since 2010, and his country of habitual residence was the UAE at the time he decides to come to the UK. It is preserved finding that the appellants cannot not satisfy the requirements of this provision of the Rules.
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It is therefore necessary for consideration to be given to whether there is any other basis on which the appellants could be permitted to enter the United Kingdom. This requires consideration of the human rights situation including a proper consideration of Part 5A of the Nationality, Immigration Asylum Act 2002, the element of the First-tier Tribunal decision that was found to be missing as per the error of law finding.
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The relevant sections are section 117A and B of the 2002 Act.
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Section 117A reads:
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)
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Section 117B reads:
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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The Secretary of State’s case is that the decision of the Entry Clearance Officer (ECO) is correct and proportionate when taking into account the public interest. The appellants’ case is that it is not, and that the refusal to allow them to enter the United Kingdom is a disproportionate interference with a right protected by Article 8 ECHR.
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In relation to the section 117 criteria, it is not disputed that the maintenance of effective immigration control is in the public interest.
It was maintained on the appellants behalf that they are able to speak English. There are within the appellants bundle letters written in English which demonstrate an ability to communicate in that language. The appellants have both received an education and certificates have been provided, the translations of which refer to a course and examination taken at the Syrian Positive Absolutely Establishment after which the appellants were awarded the qualification English language – C2. The certificate states the examination was taken in ‘Damascus countryside’ for which the appellants obtained a...
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