UT (Sri Lanka) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Coulson |
| Judgment Date | 26 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1095 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/3902 |
| Date | 26 June 2019 |
[2019] EWCA Civ 1095
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Deputy Upper Tribunal Judge Davey
OA/04588/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
and
Lord Justice Coulson
Case No: C5/2015/3902
Shivani Jegarajah (instructed by David Benson Solicitors) for the Appellant
John Jolliffe (instructed by Government Legal Department) for the Respondent
Hearing date: 12 June 2019
Approved Judgment
The sole issue in this appeal, which involves no new issue of principle, is whether the Upper Tribunal was correct to find an error of law in a decision of the First Tier Tribunal in which the First Tier Tribunal allowed an appeal from a refusal of entry clearance. If the Upper Tribunal was correct to find that the First Tier Tribunal had gone wrong in law, then there is no challenge to the Upper Tribunal's subsequent remaking of the decision. If the Upper Tribunal was wrong to detect error, then the decision of the First Tier Tribunal stands. In this judgment I will refer to the two tribunals as the UT and FTT. To avoid confusion, I will refer to the appellant (who has been anonymised as “UT” to safeguard the interests of the children involved) as A.
A is a national of Sri Lanka born in 1968 who came to the UK in June 2000 and claimed asylum. No decision was ever made on his asylum application. By 2003 A's wife, Mrs A, who had been in this country for longer than A but who also came originally from Sri Lanka, had obtained or was about to obtain permanent residence. The couple had also had two children. These were K, born on 4 August 2001, and S, born on 30 November 2002. A was granted indefinite leave to remain in September 2008, but his application for British citizenship was refused on 3 August 2010 because of a driving conviction. The applications of Mrs A and of K and S for British citizenship were granted. In 2012, K and S were 10 and 9 years old, and had spent all their lives in the United Kingdom with their mother and father.
In May 2012 A's father, who lived in Sri Lanka and was 94 years old, became very ill and the family planned to visit him. While Mrs A, K and S all had British passports, A did not even have a Sri Lankan one. A attended the Sri Lankan embassy in order to obtain an emergency travel document to enable him to travel to Sri Lanka. There he was told that he needed to supply at least some form of identification. Unwisely, with the help of an agent and his parents in Sri Lanka, he produced a false birth certificate. On the basis of this false document the requested emergency travel document was issued. On 10 July 2012 the family travelled to Colombo, A using the emergency travel document and Mrs A and the children using their British passports. Once in Sri Lanka, A applied for entry clearance to the United Kingdom as a returning resident. By a decision dated 19 December 2012 which was sent to A on 4 January 2013, the Entry Clearance Officer, Colombo (“ECO”) refused A's application on the ground that his birth certificate had been found to be false. The application was therefore refused, principally under paragraph 320(7A) of the Immigration Rules. The consequence of this was that Mrs A and the two children could and did return to the United Kingdom, but A could not. A has remained in Sri Lanka ever since.
A appealed from the decision of the ECO. His appeal came before FTT Judge Plumptre (“the FTTJ”) on 25 February 2014. By her decision issued on 28 March 2014 she dismissed his appeal against the decision of the ECO under paragraph 320(7A), but allowed his appeal under Article 8 ECHR. The Secretary of State appealed to the UT against the decision under Article 8. Although A cross-appealed against the decision under paragraph 320(7A), that appeal was dismissed by Deputy UT Judge Davey (“the DUTJ”) in a decision issued on 19 December 2014, and there is no further appeal to this court from that decision. The DUTJ found, by the same decision, that there were errors of law in the FTT decision under Article 8. He therefore set it aside and directed that it be remade in the UT. By a further decision issued on 26 August 2015, the same DUTJ set aside the FTT decision on Article 8 and substituted a decision that A's Article 8 appeal be dismissed.
Permission for a second appeal to this court was granted by Jackson LJ at an oral hearing on 28 March 2017, limited to the ground I have identified above.
The FTT decision
Before the FTT, A accepted that the birth certificate which he had produced to obtain his travel documents was false, but contended that he did not know it to be so. The FTTJ rejected that contention at [34], and turned to Article 8. At [43] she said:
“Given my finding that the ECO's decision to refuse entry clearance should be upheld under paragraph 320, which means that the appellant cannot return to the United Kingdom for 10 years, there is a real tension in this refusal and any claim under Article 8.”
Having drawn attention to this tension between A's conduct in relation to the immigration authorities, on the one hand, and the interference with family life on the other, the FTTJ then gave herself a variety of directions as to the correct legal approach, referring to or citing from a large number of cases. Some of the matters to which she drew attention were the following:
i) The five step approach to human rights claims set out by Lord Bingham in Razgar v SSHD [2004] UKHL 27 and his approach to Article 8 claims in Huang and Kashmiri v SSHD [2007] UKHL 1;
ii) The principle that the best interests of the children were a primary but not a paramount consideration, and that these interests should be addressed first, and as a distinct stage of the enquiry, before addressing other factors such as the public interest;
iii) The fact that British citizenship had an intrinsic value;
iv) The principle that, if an applicant did not succeed in gaining admission under the rules, he or she may nevertheless succeed on a direct application of Article 8 if there are circumstances not sufficiently recognised in the rules;
v) Very strong reasons must to be shown to separate a child from its natural parent.
Having set out these principles, the FTTJ turned to the facts of the case in what is admittedly a very compressed passage of reasoning at [52] to [55].
At [52], the FTTJ said, in essence, that she had given weight to the fact that both children were born and brought up in the United Kingdom, were now aged 12 and 11, had lived all their lives here, had been educated here, were settled in schools here and had the benefit of British citizenship. On the other hand, in Sri Lanka, they would have the benefit of forming a relationship with their grandparents, which they did not have here. The argument as to whether they could readjust to life in Sri Lanka was “finely balanced”. The paragraph concludes with the question: “Are these circumstances sufficient to constitute compelling circumstances?”
At [53] the FTTJ pointed out that (a) British citizenship was clearly of benefit to A's children and (b) that the dilemma of their father's true identity (by which I think she meant the facts surrounding his reliance on a false birth certificate) were “not of their own making”.
In paragraph [54] the FTTJ found that, although there were no “insurmountable obstacles” to the return of A's wife and children to Sri Lanka, “it would be difficult for this family to re-establish given that both parents have spent either 13 or 14 years in the United Kingdom”.
The FTTJ's conclusions are at [55]. She concluded that “[A]fter conducting the balancing exercise as best I can”, the refusal of entry clearance would be a disproportionate interference in the appellant's family life. She said “[to] separate the British children and the British wife from the primary breadwinner and their father/husband constitutes a disproportionate interference with Article 8 family life.”
The errors of law found by the UT
The UT error of law decision issued on 19 December 2014 addresses the Article 8 appeal at [5] to [8]. At [5], the DUTJ appears to accept that the FTTJ treated the best interests of the children as a primary consideration. He goes on to say, however, that she never addressed the significance of the outcome of the appeal on paragraph 320(7A), and the public interest, when assessing proportionality.
Having said at [5] and [6] that this error was sufficient to justify setting aside the decision of the FTT in relation to Article 8, the DUTJ then went on to say that he found the FTTJ's reasoning “confusing and contradictory”. His specific criticisms were (a) that the judge had not answered the question whether there was a basis for considering the application of Article 8 outside the rules; and (b) the judge had not reached “any clear conclusion on the issue of the unreasonableness of [A] and the children establishing family life in Sri Lanka when they were born here and spent their formative years in the United Kingdom and of course their mother is a British national as well”. There was therefore, in his view, a lack of adequate reasoning in the decision.
In the later UT decision issued on 26 August 2015, the DUTJ re-characterised his reasons for setting aside the FTT decision as being that he was “satisfied the [FTT] judge had failed to deal with the children's (K and S) best interests or the issue of the public interest or why the Respondent's decision was disproportionate.” This is not, in fact, an accurate summary of the reasons which he had previously given.
The appeal
Ms Jegarajah, who appeared for A, submitted that there was no error of law in the FTT's decision. It was incorrect to say that the FTTJ had lost sight of the...
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