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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> IA290642014 [2015] UKAITUR IA290642014 (1 October 2015) URL: http://www.bailii.org/uk/cases/UKAITUR/2015/IA290642014.html Cite as: [2015] UKAITUR IA290642014 |
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29064/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18 September 2015 |
On 1 October 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
KA (ghana)
(ANONYMITY DIRECTION MADE)
Respondent/Claimant
Representation :
For the Appellant: Ms Ashika Vijiwala, Specialist Appeals Team
For the Respondent/Claimant: Mr John Waithe, Counsel, instructed by MA Consultants
DECISION AND REASONS
1. The Secretary of State appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Majid sitting at Taylor House on 4 March 2015) allowing the claimant's appeal against the Secretary of State's decision to refuse to grant him and other members of his family leave to remain, and against the Secretary of State's concomitant decision to remove him under Section 10 of the Immigration and Asylum Act 1999 (his human rights claim having been refused). The First-tier Tribunal did not make an anonymity direction, but as the best interests of affected minor children are a central issue in this appeal, I consider that the claimant and his family should be accorded anonymity for these proceedings in the Upper Tribunal.
2. The claimant is a national of Ghana, whose date of birth is 9 January 1971. He entered the United Kingdom on 11 January 2003 on a student visa. His spouse, H, (date of birth 24 December 1979) is also a Ghanaian national, and she entered the United Kingdom illegally under an assumed name on 26 July 2004 to join her husband. On 24 March 2005 she gave birth to their daughter N. In the meantime, the claimant successfully extended his leave to remain as a student until 30 September 2005. On 26 September 2005 he applied to extend his leave to remain as a student, but the application was refused with a right of appeal on 26 May 2006. His appeal was dismissed on 27 July 2006. The claimant successfully applied for judicial review, which led to his appeal being reheard on 17 April 2007 and dismissed on 27 September 2007. On 23 November 2007 the appellant was refused permission to appeal to the Court of Appeal. While these proceedings were ongoing, the claimant's spouse gave birth to M, their second daughter, on 31 August 2006.
3. Although the claimant was unsuccessful in his appeal, he remained in the UK and made another application for leave to remain as a student on 8 April 2008, and this application was granted. He was granted an extension of stay until the end of his course of study, with his leave expiring on 31 May 2009. On 30 May 2009 he applied for leave to remain as a Tier 4 (General) Student Migrant, and the application was refused with a right of appeal on 9 November 2009. The claimant did not appeal.
4. The determination of Judge Kaler promulgated on 27 September 2007, which is at section G of the Home Office bundle, summarises the claimant's case on appeal. He had enrolled on an MBA course for one year, but decided he could not afford the fees. He had switched to an ACCA course in January 2004, and had passed all level 1 papers. He passed one paper out of three, stage 2, in June 2004. He had failed three papers in December 2004, and had failed all papers in December 2005. He passed one of three papers in June 2006. He had since transferred to study for an MBA at a different college. His father had died in February 2005 and his girlfriend had a child on 24 March 2005. He was unable to concentrate on his studies. He was a serious full-time student and his marks improved every time he sat his exams. His girlfriend was originally from Ghana. She had worked as a hairdresser but she had only worked from home since the birth of their second child. He was unaware of her immigration status. He wished to complete his studies and then return to Ghana to work as an accountant.
5. Judge Kaler accepted that the claimant was a serious student who had tried his best, but he had not shown satisfactory progress under the Rules. The claimant also did not qualify for Article 8 relief. His partner was of Ghanaian origin. The two children were young enough to adjust to life in the country of their parents. The claimant was able to continue with his studies in his home country, should he wish to do so.
6. Following the refusal of the Tier 4 application on 6 November 2009, the claimant became an overstayer as he did not appeal the refusal, and he did not voluntarily return to Ghana with his spouse and two children. On 30 June 2010 he applied for leave to remain outside the Rules, and the application was refused with no right of appeal on 17 August 2010. On 25 November 2011 he requested a reconsideration of the decision. There was intermittent correspondence between his representatives and the Home Office in 2011, 2012 and 2013, culminating eventually in a reconsideration decision of 7 July 2014.
7. In assessing the best interests of his children, the Secretary of State contended the best interests of the child would normally be met by remaining with their parents and returning with them to the country of origin. His daughters were both citizens of Ghana, born to parents who were also nationals of Ghana without any lawful leave to remain in the United Kingdom; so they could not qualify for leave under the Rules. The refusal letter continued:
20. [N] was 5 years old at the time of the application and is currently 9 years of age and her sister, [M], was nearly 4 years of age at the time of application and will be 8 on 31 August 2014. Having spent their youth and formative years in Ghana prior to their arrival in the United Kingdom, it is considered that both the girls' parents will continue to have cultural ties to their country of origin. At only 9 years of age and almost 8, the nature and degree of any relationships your client's daughters have formed will, for the most part, be of a primarily intra-familial nature; in the main, with the focus on home and family. Your client's children would be returning to Ghana with their parents where they will continue to live as a family unit with their support. Your client's daughters have no known medical concerns, welfare issues or special educational needs. They will be able to continue their education on return to Ghana. The sole official language of instruction throughout the Ghanaian educational system is English. Students may study in any of eleven local languages for much of the first three years, after which English becomes the medium. Students continue to study a Ghanaian language as well as French as classroom subjects through at least the ninth grade. All textbooks and materials are otherwise in English. This information has been sourced from http://ghana.usembassy.gov/local links.html on 3 June 2014. It is accepted that they may not receive the level of tuition available in the United Kingdom but is not accepted that the United Kingdom has assumed responsibility for the girls' education.
21. In view of the above, it is not considered that your client and his family's removal to Ghana would be detrimental to their daughters' welfare as they, together with their parents, would be expected to return as a family unit. The general needs of the children have been considered but at present, no welfare issues have been raised.
22. It is accepted that the removal of your client and his family from the United Kingdom would result in a degree of interference with the private life they have developed in this country. However, the evidence that you have supplied in support is insufficient and does not demonstrate any breadth or depth to this aspect of their lives in the United Kingdom. The lead applicant arrived in the United Kingdom as a student and would have been fully aware that he would be expected to return to Ghana when his student visa expired. These matters weigh against your client when a decision is made as to whether his removal would be a disproportionate breach of his limited private life. The need to maintain Immigration control is a weighty consideration. In your client's particular circumstances, it is considered that the balance is struck in favour of removal. Your client's removal from the United Kingdom, along with his spouse and two children, is therefore fully justified, lawful, proportionate and necessary to protect United Kingdom interests. In addition, your client has enjoyed a significant time in education in this country and has gained skills through his new qualifications. These are assuredly assets which will be transferable into the employment arena in Ghana. Your client and his family will be at liberty to maintain contact with any friends they have made in the United Kingdom through the many means of modern technology available to them throughout the world.
The Hearing Before, and the Decision of, the First-tier Tribunal
8. At the hearing before Judge Majid, both parties were legally represented. The claimant adopted as his evidence-in-chief a witness statement dated 4 March 2015 in which he said that he and his wife had had two more children in the UK. One of them had been born on 25 August 2011, and their youngest had been born on 24 December 2012. Although the Home Office considered his two eldest children in the refusal, they had not mentioned his two youngest children, and that meant that their case was not considered.
9. In cross-examination, the claimant said he was a law abiding person who had not committed any crime. His life was in this country and there would be grave consequences to his children if they were asked to leave here, as they had not been to any other country than the UK.
10. The judge's reasons for allowing the claimant's appeal are to be found in paragraphs [10], [21] and 22, which I reproduce below:
10. In this Determination I am confining my reasons to the dispositive aspects of the case. I have carefully perused the Witness Statement of the Appellant and my mind is affected by the following facts:-
(a) The eldest child will become "ten years old" on 24 March 2015. This means that she will be entitled to apply for British nationality. I always wonder where a British person will be deported to if (s)he is unwanted in a foreign country.
(b) The second child of the Appellant was born on 31 August 2006. She will soon be reaching the 10 year mark.
(c) The Appellant has 4 children and all of them have been born in the UK and have not been to any other country. Thus the rights of the children are paramount in this appeal.
(d) The Home Office has not paid full attention to the interests of the children otherwise this Refusal would not have taken place. However the fact that the parents can benefit from the children's rights could confuse anyone. The Rule of Law demands that the children should not be punished for the wrongs of their parents.
21. I am fully conscious of the "legal requirements" stipulated by Immigration Law. It is incumbent upon me to advert to the new Rules giving respect to the animus legis. I certainly have taken into account the "best interests" of the Appellant's children and the Rule of Law should benefit this crime-free family which is fully integrated in the UK system. As the statement of the Appellant says, this family so far has conducted itself properly. The Appellant has highlighted that he has been doing community work for the benefit of many people. He was at pains to highlight the fact that the Home Office has not considered the interests of his children properly. I cannot overlook the fact that the Respondent was particularly asked to look at the interests of the children.
22. Accordingly, in view of my deliberations in the preceding paragraphs and having taken into account all of the oral and documentary evidence as well as the submissions at my disposal, cognisant of the fact that the burden of proof is on the Appellant and the standard of proof is the balance of probabilities, I am persuaded that the Appellant comes within the law and can benefit from the relevant Immigration Rules as amended and the protections of the ECHR.
The Grant of Permission to Appeal
11. On 6 May 2015 First-tier Tribunal Judge Hollingworth granted the Secretary of State permission to appeal for the following reasons:
1. An arguable error of law has arisen as to the degree of weight attached by the Judge to individual factors in the case.
2. At paragraph 10 the Judge has stated that his mind is affected by the following facts. These are then set out at (a) to (d). An arguable error of law arises in relation to the Judge's statement: "I always wonder where a British person will be deported to if (s)he is unwanted in a foreign country.". It is unclear to what extent this factor has weighed in the analysis of the Judge.
3. An arguable error of law arises on the footing that it unclear to what extent the wondering of the Judge plays a role in the finding of facts and the application of the law to those facts. The Judge has stated that the Home Office has not paid full attention to the interests of the children otherwise the refusal would not have taken place. The Judge continues: "However the fact that the parents can benefit from the children's rights could confuse anyone".
4. An arguable error of law arises in relation to the extent of the Judge's analysis of the best interests of the children set against these statements in the light of the degree of analysis subsequently conducted by the Judge .
The Hearing in the Upper Tribunal
12. At the hearing before me, Ms Vijiwala developed the arguments raised in the grounds of appeal. On behalf of the claimant, Mr Waithe submitted that there were no material errors of law in the judge's assessment. He referred me to Section 1(4) of the British Nationality Act 1981 which provides as follows:
A person born in the United Kingdom after commencement who is not a British citizen ... shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of 10 years, to be registered as such a citizen if, as regards each of the first ten years of that person's life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.
13. Mr Waithe submitted that the provision was mandatory, not discretionary, and the ability of the oldest child to be registered as a British citizen was a matter which the judge justifiably treated as being of considerable weight.
14. I have ruled an error of law was made out, and gave my reasons for so finding in short form. I then discussed with the parties how the decision should be remade. From my reading of the claimant's witness statement for the First-tier Tribunal there were no factual issues which needed to be resolved, with the possible exception of the claimed difficulties which the claimant said he would encounter in Ghana on return. The First-tier Tribunal had made no findings of fact on this aspect of the claimant's evidence. Accordingly, I invited Mr Waithe to call the claimant as a witness to give evidence on this issue.
15. In evidence-in-chief, the claimant said that the obstacles to the children going back to Ghana were the fact that they had never been there, and they did not speak the Ghanaian languages. His children were all healthy, except that his second child had been involved in a car accident on 12 August 2015, which had led to her being hospitalised. She was now out of hospital, but her leg was in plaster. She was currently at home, having bed rest. He was due to take her to an appointment at the hospital on 23 September 2015 where she would be reviewed and an updated prognosis given.
16. He had worked part-time on a student visa until 2011. He had worked as a security guard.
17. He had no assets in Ghana. He had lived with his parents before coming to the United Kingdom. They lived in a room with other people. If he went back now, he would only be able to go and stay in a hotel.
18. In cross-examination, he said he had worked in the UK until 2014. He had received a letter requiring him to stop work on 11 January 2014. Since then, he and his family had been supported here by friends and family, and also the church helped them from time to time.
19. He had last gone back to Ghana in 2005 for his father's funeral. His mother was still alive but she was old. He was in contact with her when he was able to be in contact with her. She lived in a town in the middle part of Ghana. Before he came here, he moved from his home town to Accra. He was living with friends in Accra, trying to make a life for himself. Initially he said he did not work in Accra, but he then said that he made money selling things in the street, and that he had paid for his initial studies in the UK, including his college fees, from the savings which he had accrued from his business in Accra.
20. His mother was living with his brother who was supporting her. He was a teacher at a primary school. He had a big extended family in Ghana, but he was not close to anyone in Ghana apart from his mother and brother, who was married with children. His brother could not support him financially.
21. He was asked about his qualifications. He said he had got a higher national diploma at a polytechnic in Ghana in the year 2000. He had come to the United Kingdom in 2003 to study an ACCA course. He had not completed an ACCA course, but he had obtained an MBA in financial management. As from last July 2014 he was a qualified financial advisor and mortgage broker. He would not be able to get a job in this capacity in Ghana. There were a lot of unemployed graduates in Ghana.
22. In her closing submissions on behalf of the Secretary of State, Ms Vijiwala submitted that the appeal should be dismissed for the reasons given in the decision letter. She relied on paragraph [13] of AM Malawi for the proposition that the disruption of the children's education in the UK was not a trump card.
23. In reply, Mr Waithe submitted that the claimant faced very significant obstacles in reintegrating, which would impact adversely on the children. He had no property or job to return to in Ghana. The other child had now made an application to be registered as a British national, and once she had been registered as a British national, she would be able to secure her parents' status here on Zambrano grounds.
Reasons for Finding an Error of Law
28. EV (Philippines) v SSHD [2014] EWCA Civ 874 provides the most recent guidance from the senior courts on the approach to best interests and the question of reasonableness. Clarke LJ said:
29. Lewison LJ said:
49. Second, as Christopher Clarke LJ points out, the evaluation of the best interests of children in immigration cases is problematic. In the real world, the appellant is almost always the parent who has no right to remain in the UK. The parent thus relies on the best interests of his or her children in order to piggyback on their rights. In the present case, as there is no doubt in many others, the Immigration Judge made two findings about the children's best interests:
(a) the best interests of the children are obviously to remain with their parents; [29] and
(b) it is in the best interests of the children that their education in the UK [is] not to be disrupted [53].
50. What, if any, assumptions are to be made about the immigration status of the parent? If one takes the facts as they are in reality, then the first of the Immigration Judge's findings about the best interests of the children point towards removal. If, on the other hand, one assumes that the parent has the right to remain, then one is assuming the answer to the very question the Tribunal has to decide. Or is there is a middle ground, in which one has to assess the best interests of the children without regard to the immigration status of the parent?
30. The judge went on to analyse ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 in order to elicit an answer to this question. He reached the following conclusion:
58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis the facts are as they are in the real world. One parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
On the facts of ZH it was not reasonable to expect the children to follow their mother to Tanzania, not least because the family would be separated and the children would be deprived of the right to grow up in the country of which they were citizens. That was a long way from the facts of the case before them. No one in the family was a British citizen. None had the right to remain in the country. If the mother was removed, the father had no independent right to remain. With the parents removed, then it was entirely reasonable to expect the children to go with them:
Although it is, of course a question of fact for the Tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world.
Jackson LJ agreed with both judgments.
24. As stated by Clarke LJ in paragraph [34] of EV Philippines, in determining whether or not the need for immigration control outweighs the best interests of affected children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here and also to take account of any factors that point the other way.
25. The approach taken by Judge Majid is wholly inadequate, as he only addresses some of the factors listed by Clarke LJ in paragraph [35] of EV Philippines. He does not address at all the factors mentioned in sub-paragraphs (d) to (g). He also does not weigh in the balance the strong weight to be given to the need to maintain immigration control in pursuit of the economic wellbeing of the country and the fact that, ex hypothesi, none of the members of the family (with the arguable exception of the eldest child) have an independent entitlement to remain.
26. As I explored Mr Waithe in oral argument, there was also a clear misdirection on the part of the judge in characterising the children's best interests as being a paramount consideration, as opposed to a primary consideration.
27. For the above reasons, the decision of the First-tier Tribunal is vitiated by a material error of law, such that it should be set aside and remade.
The Remaking of the Decision
28. Mr Waithe accepts that neither the claimant nor his dependants qualify for leave to remain under Appendix FM. The two eldest children also do not have a viable claim under Rule 276ADE(1)(iv) as neither of them had accrued seven years' residence at the date of application. The application which triggered the eventual decision in July 2014 was made in 2010. The fact that there was an exchange of correspondence in the intervening period, in the course of which further representations were made by the claimant's solicitors, does not mean that the date of application was reset to a later date.
29. The claimant has a potential claim under Rule 276ADE(1)(vi) on the ground that there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the UK. But the postulated obstacles are purely economic ones. It is not suggested that there would be cultural, familial, linguistic or societal obstacles to his reintegration. I find there is not a real risk that the claimant would be homeless and destitute on return to Ghana, thus imperilling the safety and wellbeing of his children. Although the claimant was very dismissive about his trading activity in Accra between the year 2000 and 2003, it must have been significant in order to persuade an Entry Clearance Officer that he had sufficient funds to maintain and accommodate himself in the United Kingdom and to meet the costs of his proposed course of study. The claimant has enhanced his employability on return to Ghana through acquiring an MBA qualification in the UK and gaining experience as a treasurer (see below), and there are not substantial grounds for believing that he would be unable to obtain gainful employment in order to set himself up in business on return to Accra. In the meantime, there is no reason to suppose that the financial support which he and his family are accessing from family and friends in the UK will not continue, while the claimant re-establishes himself.
30. Turning to an Article 8 claim outside the Rules, questions 1 and 2 of the Razgar test should be answered in favour of the claimant with regard to the establishment of private life in the United Kingdom. Questions 3 and 4 of the Razgar test should be answered in favour of the respondent.
31. On the crucial question of proportionality, the best interests of affected minor children are a primary consideration. Under the statute, the two eldest children are qualifying children as each of them has accrued more than seven years' residence as at the date of the hearing. Although the best interests of the two youngest children must also be taken into account, the scales are firmly tipped in favour of them returning with their parents to Ghana, given their ages and respective lengths of residence. The outcome of this appeal pivots on the best interests of the two eldest children, who have much stronger private life claims, in view of their ages and respective lengths of residence.
32. T he main considerations weighing in favour of the two eldest children remaining here are their length of residence and the fact that they are now both in full-time education. But they have not reached a point in their education where they are about to take public exams (such as GCSEs) and neither of them has accrued seven years' residence from the age of four. Having grown up in a multicultural society, and probably within a Ghanaian diaspora, their connection to the country of their nationality should be relatively easy to renew. While there is likely to be a difficult period of adjustment to a new life in Ghana, the children will have the support of their Ghanaian parents and they will also be able to enjoy family reunion with, among others, their maternal grandmother and maternal uncle. The Ghanaian Constitution provides a free compulsory and universal basic education for all children from kindergarten through junior high school, and so the children would be able to continue with their education in Ghana, albeit with a different set of teachers and fellow pupils. English is the official language of Ghana, and so the children will not have any linguistic difficulties in adapting to life there. The evidence also does not disclose any long-term medical or other difficulties in readapting to life in Ghana. The proposed removal of the entire family to Ghana will not interfere with family life, as the integrity of the family unit will be preserved.
33. The more difficult question is whether the proposed removal of the family is inimical to the eldest child's rights as a British citizen. Clearly this was not the case at the date of the hearing before the First-tier Tribunal, as the eldest child had not yet accrued ten years' residence so as to be eligible to apply for registration as a British national. The position is less straightforward now as the eldest child has passed the ten year mark, and her parents have applied for her to be registered as a British national. As Ms Vijiwala accepts, there is no reason to suppose that the application will not be successful. On the other hand, as of the date of the hearing before me the eldest child has not yet been registered as a British national. So Ms Vijiwala submits that I should not treat the eldest child as having an independent right to remain here as a British national.
34. I consider that the right approach is to recognise that N is not yet a British national, but that her registration as a British citizen is imminent; and, this represents an additional factor which militates in favour of her staying here. For otherwise she will be deprived of the benefits of British citizenship for the remainder of her minority, including the right to receive a free education in the UK.
35. Accordingly, I accept that the scales are marginally tipped in favour of the eldest child remaining in the UK, notwithstanding the benefits of her returning with the rest of her family to Ghana, the country of which she is also a national. On the other hand, as the second child M has not yet accrued ten years' residence in the United Kingdom, the scales are tipped in favour of her returning to Ghana with the rest of the family.
36. The outcome of the best interest assessment with respect to M is not decisive, because the outcome of the best interest assessment in respect of the eldest child N could by itself render the removal of the entire family to Ghana a disproportionate outcome.
37. But it is necessary to have regard to the parents' adverse immigration histories in the wider proportionality assessment. While the children are blameless in their parents' immigration offending, the public interest in the removal of immigration offenders cannot be ignored. Not only is the claimant an overstayer, but on the available evidence his wife is an illegal entrant; and the claimant initially concealed her illegal entry and presence. For in his FLR(S) application received by the Home Office on 10 April 2008, the claimant mentioned N and M as his dependants, but crossed out the section referring to a partner. At all events, the claimant and his wife have built up family and private life in the United Kingdom in the full knowledge that the claimant only came to the United Kingdom for a temporary purpose, and that his declared intention was to return to Ghana once his studies were completed; and in the full knowledge that his girlfriend, and latterly his wife, had no right to be here herself.
38. I acknowledge the character references for the claimant from his church and from Glyndon Community Group (for whom the claimant has served as treasurer and chairman of the finance subcommittee since 31 January 2009). But little weight can be given to a private life which is built up while the person's status here is precarious, and the positive contribution which the claimant has made to his local community does not detract significantly from the public interest in his removal. For his illegal presence here is damaging on a macro-economic level.
39. In conclusion, I find that the proposed interference is proportionate to the legitimate public end sought to be achieved, namely the maintenance of firm and effective immigration controls.
Notice of Decision
The decision of the First-tier Tribunal contained an error of law, and accordingly the decision is set aside and the following decision is substituted: the claimant's appeal is dismissed under the Rules and under Article 8, ECHR.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the SSHD and to the claimant. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date
Deputy Upper Tribunal Judge Monson