AJ (India) v Secretary of State for the Home Department

SP and EJ have permission to appeal against decisions of the Asylum and Immigration Tribunal ("the tribunal"). AJ seeks to quash a decision of the tribunal by way of judicial review and has been granted permission to appeal against the decision of Ouseley J refusing to do so.

Sullivan LJ has directed that the three appeals be heard together. Granting permission to appeal to AJ on 17 June 2011 he stated:

Sullivan LJ added:

When he granted permission Sullivan LJ was aware that the Secretary of State had indicated that she would grant to the appellant, AJ, his wife and three children, all of whom are British citizens, discretionary leave to remain for three years. Sullivan LJ was also aware that:

Elias LJ, who granted permission to appeal to EJ on 19 April 2011, observed:

ZH was decided after the decisions of the Secretary of State under challenge had been made. The Secretary of State has offered a remittal to the tribunal in EJ for"...a fresh consideration of Article 8 ECHR proportionality assessment to be undertaken ". No relief has been offered to SP and the court will hear his appeal.

In submitting that the court should also hear the appeal of EJ where relief has been granted, Ms Jegarajah submitted that Sullivan LJ had given permission to appeal. He had done so for good reason. It is submitted that in assessing the significance of section 55 of the 2009 Act, the court should have a range of factual situations to consider. Moreover there was a danger, it was submitted, that the Secretary of State could otherwise select cases for consideration which were best in her interests. It is also submitted that the facts are so clear in EJ that the court can allow the appeal without the need to remit to the AIT for further factual assessment.

As indicated at the beginning of the hearing, the court did not accept those submissions. The court can express any views on section 55 it wishes to express in the appeal of SP. The application of section 55 will be fact-sensitive and, relief having been granted, a decision on the present facts in EJ would be academic. If and when relief has to be sought by EJ at a future date, the facts are likely to have changed. We are unpersuaded that the case is so clear that a decision in EJ's favour could be made without the need for remittal to the tribunal. The appellant seeks to bring additional facts into consideration and these should be considered, if the matter arises, by the tribunal as the fact finding body, along with other evidence. Further, we detect no sign that the Secretary of State is likely to act unfairly by seeking to avoid judgments in cases considered unfavourable to her.

The position in AJ, where relief has been sought by way of judicial review, is different. AJ is an overstayer. On 3 January 2009 he applied for leave to remain in the United Kingdom on the basis of Article 8. The application was refused on 3 July 2009. That was a non-appealable decision because it did not include a decision to remove AJ and was not therefore an immigration decision for the purposes of section 82 of the Nationality Immigration and Asylum Act 2002. AJ's challenge to the decision is by way of judicial review, and the question arises whether the same approach to section 55 of the 2009 Act is appropriate in the context of non-appealable decisions when the challenge is by way of judicial review. A legal point, which may be of some general significance, thereby arises.

The court was not prepared to consider the issue at the hearing, for which one day had been allotted, for lack of time and also because the point had not been addressed in the otherwise detailed written submissions on behalf of the Secretary of State.

Accepting that resolution of the point is reasonably required, the court, on being presented with an agreed question and an agreed statement of facts, decided, with the consent of the parties, to consider the point on the basis of written submissions to be submitted within 14 days.

SP, aged 33 and his wife, DP, are Indian nationals. He arrived from India on 6 April 2003 with a visitor's visa and DP arrived shortly afterwards. His visa expired and SP became an overstayer. On 26 June 2008 he applied for leave to remain on Convention grounds, Articles 2, 3 and 8. He did not apply for asylum. DP's application was made dependent on his. On 24 July 2008 DP gave birth to a son, D.

The application to remain was refused on 19 January 2010 and directions for removal issued. It was stated that the appellant and his spouse could return to India together as a family unit. The appellant could seek employment there. He had spent most of his life outside the United Kingdom. The existence of the child had not been brought to the Secretary of State's attention. SP's appeal was considered by the tribunal, on the papers, at the appellant's request. One of the grounds of appeal was the birth of the son. In relation to Article 8 the Immigration Judge stated, in a determination promulgated on 27 August 2010:

“18.

I have considered whether the proposed removal of the appellant would be an unlawful interference by a public authority with the exercise of the appellant’s right to respect for his family and/or private life. It is apparent that the Secretary of State’s decision will have consequences of some gravity for the appellant in terms of his family and private life not least because he will be required to leave his home in the UK and return [to] India. His son was born here and there would be inevitable disruption in the lives of the 3 family members who would be uprooted from their current home and neighbourhood.”

19.

I have considered the appellant’s personal history and have noted that, according to [the] submission made in the solicitors letter, the appellant has business premises in India. It would appear from this that he has financial interest and family members in India.

...

25.

I take into account the fact that the appellant is a citizen of India, as are all his closest family members. I also take into account the not unimportant fact that the appellant will not be separated from his wife and child as neither he nor his wife have leave to remain and the family, if removed from the UK would be removed altogether.

His child is not old enough to attend school and there is no question of disruption of education.

26.

Although the appellant may be used to life in the United Kingdom where he has lived for seven years, he lived for about 25 years in India before moving here. The reason for him being allowed to enter has long expired. He and his wife are used to the customs, language and social background of India. He appears to have had a business there and it would appear from this fact that he would be able to earn an income for his wife and son.

27.

I take the view that the balancing exercise which I undertake must take into account the effect of the decision on the appellant in terms of the family and private life, as well as the desirability that the respondent should exercise immigration controls fairly and in accordance with the published immigration rules. In this case the application was made at a time when the appellant’s leave had long expired. His wife’s appeal is dependent on his and there is no question of them being separated. His child is of an age where education would not be disrupted and no strong ties have been established with anyone other than his parents. Importantly the appellant has not provided any evidence to the Tribunal in support of his claim. No compassionate grounds, health issues or domestic issues have been highlighted in support of this appeal. The respondent appears to have applied his own policy consistently and has given consideration to the factors set out in paragraph 395C when making the decision to refuse leave to remain.”

The appeal was dismissed and SP appealed to the Upper Tribunal. The further point was then taken that the Secretary of State and the First Tier Tribunal had not referred to section 55 of the 2009 Act, which had come into force on 2 November 2009. In relation to that, the Deputy Upper Tribunal judge stated, at paragraph 15 :

Section 55(1) to (3) of the 2009 Act provides:

“55 1)The Secretary of State must make arrangements for ensuring that—

(a)

the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2)The functions referred to in subsection (1) are—

(a)any function of the Secretary of State in relation to immigration, asylum or nationality;

(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c)any general customs function of the Secretary of State;

(d)any customs function conferred on a designated customs official.

(3)A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

Statutory guidance issued by the Secretary of State, pursuant to the 2009 Act, provides:

“The UK Border Agency must also act according to the following principles:

Every child matters even if they are someone subject to immigration control.

In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.

Ethnic identity, language, religion, faith, gender and disability are taken into account when working with a child and their family.

Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children’s concerns.

Children should have their applications dealt with in a timely way and that minimises the uncertainty that they may experience.”

The first of those paragraphs reflects Article 3 of the United Nations Convention on the Rights of the Child ("UNCRC"), which took effect in the United Kingdom on 18 November 2008:

For the appellant, Mr Malik submits that the best interests of the child must clearly be a primary consideration in assessing Article 8 claims in the present context. He submits that the object of section 55 and the Secretary of State's guidance is to introduce an additional obligation, one in addition to the obligation to comply with Article 8. In the present case, it is clear that the Secretary of State did not consider the statutory obligation when making the relevant decision. She was not even aware that there was a child. Mr Malik submitted that the decision taken by the Secretary of State was wrong in law because section 55 was not considered. It is immaterial that the Secretary of State was not and could not have been aware of the birth of the child, D. The tribunal, which became aware, should have allowed the appeal and remitted the case to the Secretary of State, the primary decision maker, for further consideration.

This is an appeal under section 84(1) of the 2002 Act on the ground that the decision is not in accordance with the law or Immigration Rules 395C and D which attract the application on Article 8. In the absence of a reference to section 55, the decision of the Secretary of State was not in accordance with the law or the Rules, it is submitted, and the tribunal was required under section 82 to allow the appeal.

Reliance was placed on Baroness Hale's statement at paragraph 24 of ZH. Ms Carss-Frisk QC, counsel for the Secretary of State in that case, acknowledged that this duty applies not only when considering how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made but also to the decisions themselves. That means that any decision taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with the law" for the purposes of Article 8.2. The Secretary of State, as well as the tribunal, will therefore have to address this in their decisions, and the tribunal could only remit.

I do not accept Mr Malik's submissions on this issue. The decision of the Secretary of State complained of was a decision refusing leave to remain. The duty of the tribunal under section 86(3) is to determine the appeal. It must allow the appeal insofar as it thinks that the Secretary of State's decision "was not in accordance with the law (including immigration rules)".

The tribunal has power to hear evidence, make findings of fact and decide points of law. On the material before it, the tribunal was entitled to conclude that the decision of the Secretary of State refusing leave to remain was, on the material before the tribunal, one on which the tribunal was able to make a judgment. What the tribunal could find on the merits in this case is for further consideration in this appeal, but I have no doubt that the tribunal was in law entitled to proceed.

In Huang v The Secretary of State  [2007] 2 AC 167 Lord Bingham of Cornhill stated at paragraph 11:

“These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.”

Paragraph 24 of ZH does not assist the appellant. Baroness Hale plainly contemplated that the tribunal must consider Section 55. If Baroness Hale had been of the view that the tribunal was excluded from doing so because its only option was to remit to the Secretary of State, I am confident that Baroness Hale would have said so. Further, paragraph 71 of DS (Afghanistan) v SSHD  [2011] EWCA Civ 305 does not assist the appellant. Section 55 had not been mentioned at the tribunal hearing in that case. Lloyd LJ stated at paragraph 71:

On the merits of the appeal, Mr Malik submitted that the tribunal was required to take the guidance of November 2009 into account. An attempt should be made to consult children even if they are very young. The tribunal did not approach the case on the basis that the child came first in priority. If there is no specific reference in its decision to section 55, its decision can stand only if it is very clear that the substance of the obligation has been taken into account. In the absence of a reference to section 55 it must be clear that each part of the guidance has been followed. That standard is not satisfied, Mr Malik submits, in the decision of the First Tier Tribunal in this case.

In ZH Baroness Hale, with whom the other members of the court expressly agreed, referred to Article 3.1 of UNCRC, and stated:

At paragraph 26 Baroness Hale cited the judgment of the Federal Court of Australia in Wan v Minister for Immigration and Multi-cultural Affairs [2001] FCA 568, at paragraph 32:

“[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”

Baroness Hale added:

“This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.”

At paragraph 29 Baroness Hale posed the question, "What is encompassed in the 'best interests of the child?” Baroness Hale answered the question in this way:

“As the UNHCR says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo), it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away.”

Baroness Hale was plainly including the family context as an element encompassed in “the best interests of the child”. At paragraph 33 Baroness Hale added:

“We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.

It is plain from paragraph 33 that Baroness Hale has incorporated the section 55 test within the proportionality assessment under Article 8. I have difficulty with the expression "a primary consideration" in Article 3, which appears to be a contradiction in terms in that there can only be one primary consideration and the expression is not “the primary consideration” but "a primary consideration". Baroness Hale's approach in paragraph 33 is to treat primary temporally, that is meaning that it is a consideration that must be considered first, terminology also used in paragraph 26.

At paragraph 25 Baroness Hale had acknowledged the difficulty in terminology:

“Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as “a primary consideration”. Of course, despite the looseness with which these terms are sometimes used, ‘a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘the paramount consideration’.

Baroness Hale has also acknowledged the context in which the best interests of the child are to be considered and what they encompass. These include consideration of the child's family circumstances and the child's relationship with parents. Such acknowledgement also appears at paragraph 31 where the facts in ZH were considered. Baroness Hale distinguishes those facts from a situation in which the child "moves with both her parents to a country which they know well". It is clear that Baroness Hale is treating the best interests of the child as encompassing the family context.

That being so, the order in which factors are considered is not in my view crucial, as this court stated in Lee. When considering the child's best interests first, it must be in the context of the particular circumstances of the child's family. It is the overall assessment which is important, keeping the best interests of the child in mind throughout as a primary consideration.

In Lee v SSHD  [2011] EWCA Civ 348, a deportation case, the Immigration Judge had upheld a deportation order in relation to a man who had children in the United Kingdom, without the benefit of the decision in ZH. Sedley LJ, giving the judgment of the court, consisting of himself, the President of the Family Division and Arden LJ, said that what matters is not the form but the substance of the consideration given to the interests of the children. It had been claimed that the Immigration Judge was in error in considering whether the case for deportation was outweighed by the family's interests rather than by prioritising the older child's interests and asking whether they were outweighed by the interests of deportation. Sedley LJ stated at paragraph 17:

The appeal was dismissed, Sedley LJ stating at paragraph 27:

An issue in the present case is whether the failure to have referred specifically to section 55 is fatal to the decision of the First Tribunal. For the Secretary of State, Ms Chan submits that it is the substance not the form that matters. If is clear that the interests of the child have been treated as a primary consideration, the absence of a reference by the Immigration Judge to section 55 is not fatal. Moreover, she submits, an error is not material if the outcome could not have been anything other than that the removal was proportionate. The error must be capable of affecting the result: Lumba v SSHD  [2011] UKSC 12 at paragraph 207.

The question whether there needs to be an express reference in the determination to a statutory obligation has been considered in other contexts. Section 71 of the Race Relations Act 1976, as amended by the Race Relations Amendment Act 2000, imposes a duty on specified bodies in carrying out their functions to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity, good relations between persons of different racial groups. In Baker v SSCLG [2008] EWCA Civ 141 a local authority had not made reference to section 71 in its decision making procedure. Giving judgment at paragraph 36, Dyson LJ stated:

“I do not accept that the failure of an inspector [in a planning appeal] to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form.”

Dyson LJ added at paragraph 37:

“The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.”

Baker involved the application of the specific government planning policies set out in circular 01/2006 on gypsies. It was held that complying with the relevant paragraphs in the circular in substance discharged the duties in section 71(1). The same conclusion was reached by Elias J in R(Isaacs) v SSHD [2009] EWHC 557 (Admin).

A different conclusion was reached in R(Janet Harris) v The London Borough of Haringey [2010] EWCA Civ 703. The statutory obligation in section 71(1) to “have regard”:

“...did require an analysis of that material with the specific statutory considerations in mind. It does not, of course, follow that considerations raised by section 71(1) will be decisive in a particular case. The weight to be given to the requirements of the section is for the decision maker but it is necessary to have due regard to the needs specified in section 71(1). There was no analysis of the material before the council in the context of the duty.”

Per Pill LJ, with whom Arden LJ and Sullivan LJ agreed, at paragraphs 39 and 40. The situation was different from Baker  and Isaacs where policy guidance in the form of a circular, which had been taken into consideration, had addressed the problem as raised by Section 71. (Elias J in Isaacs at paragraph 53).

The section 71 duty is different from the present duty in that it superimposed on planning authorities an obligation which did not previously exist. In the present circumstances, the pre-existing law required decision makers to have regard to the welfare of children. It is now required that the best interests of the children shall be a primary consideration. Article 3 of UNCRC, from which section 55 and the policy guidance arises, is of general international application and the obligation is stated in the Convention without knowledge of duties already imposed on decision makers under different national laws. The obligation is to be integrated into international law. What is now required is to ensure that the best interests of the child are "a primary consideration", when making an Article 8 assessment.

In the present case, the Immigration Judge in the Upper Tribunal concluded that the Immigration Judge had "in his analysis of Article 8 considered the best interests of the appellant's child". The Immigration Judge had considered the facts as required by Baroness Hale at paragraph 29 of ZH, and the approach was appropriate to the statutory test. The findings of the Immigration Judge have already been set out. Baroness Hale considered the facts of ZH at paragraph 31 and they were very different from those in the present case

It is not enough to say that a young child may readily adapt in another country. However, that may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily reintegrate in their own community. It is very different from the case of children who have lived here all their lives and are expected to move to a country they do not know well, or will be separated from their parents whom they also know well.

The facts in the present case were very different from those in ZH. The child was two years old at the time of the decision. He had not started school or formed ties with anyone other than his parents. He had no leave to remain in the UK nor was he or his parents of UK citizenship. He would be moving with his parents to a country with which his parents were familiar. His best interests would clearly be served by remaining with his parents wherever they may be.

In the present case there is no question of separating the child from his parents or from a community in which the child has grown up. That fact was rightly considered important by the tribunal, Blake J presiding, in LD (Article 8 -- best interests of a child) [Zimbabwe] [2010] UKUT 278 (IAC). In that case the three children were aged 20, 14 and 11. They lived in the United Kingdom and had indefinite leave to remain, as did their mother. Blake J referred to Article 3 of the UNCRC and also stated in paragraphs 26 and 27:

“26.

Very weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life.  Both principles are engaged in this case.

27.

The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives.  Previously Home Office policy tended to identify seven years of residence of a child as one that would presumptively require regularisation of immigration status of child and parents in the absence of compelling countervailing factors. That was really an administrative way of giving effect to the principle of the welfare of the child as a primary consideration in such cases and when it was considered that those interests normally required regularisation of the immigration position of the family as a whole.”

There is a consistent theme in the cases in indicating the importance of the child's family circumstances.

Before expressing final conclusions I make the following general comments, in addition to those made in paragraphs above.

The facts in the present case were considered by the Immigration Judge, in a manner whereby he was treating the best interests of the child as a primary consideration. D's age was such that there could be no consultation with him, as required in the guidance with older children, nor are other considerations are suggested to be relevant. It is not suggested that there are medical or other needs which point towards continued residence in the United Kingdom.

The Immigration Judge, on a reading of his determination, cannot in my judgment be said to have relegated those interests to a secondary consideration, or have failed to comply with the law as it now is. The failure to refer in terms to section 55 was not fatal and its requirements were in substance met. The birth of the child was brought to the attention of the Immigration Judge. A reading of his determination plainly establishes in my judgment that appropriate weight has been given to the welfare and interests of D, as a primary consideration. What Sedley LJ said in Lee at paragraph 27 is relevant to this case. There was " a properly structure appraisal of the evidence". In substance it demonstrated a "correct understanding of the importance of the child's best interests".

Moreover, whatever primacy is given to the interests of D, I cannot see that, on the evidence, any other result could properly be achieved. There has been compliance in substance with section 55 and the statutory guidance. For those reasons I would dismiss this appeal.

I agree.

I also agree. In this case, as I understand in many cases currently the subject of applications to the Administrative Court, much importance has been rightly attached to the judgement of Baroness Hale in ZH (Tanzania) at paragraph 33. In that paragraph she explained that, in conducting the analytical exercise involved in balancing the various considerations and taking into account the making of a proportionality assessment under Article 8, the best interests of the child must be a primary consideration and stated "This means that they must be considered first.” However, she did not say they would the primary consideration: c.f. the requirement under section 11 of the Children Act that the child's welfare shall be the court's "paramount" consideration.

At paragraph 26 of her judgment Baroness Hale approved the observations of the Federal Court of Australia in Wan v Minister for Immigration and Multi-Cultural Affairs “ [2001] FCA 568 at paragraph 32:

“[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”

Baroness Hale then went on to say:

“This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.”

Lord Hope, who expressed his full agreement with the reasoning by Baroness Hale, observed at paragraph 44 :

“There is an obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration. The proper approach, as was explained in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568, para 32, is, having taken this as the starting point, to assess whether their best interests are outweighed by the strength of any other considerations.

In this case, albeit there was no reference to section 55 of the 2009 Act in the determination of the First Tier Tribunal, very careful consideration was given to the necessary balancing exercise in respect of the Article 8 considerations which arose and to the position of the child within the family, the child being of an age at which his welfare interests clearly dictated that he should remain within the care of his parents whether in the United Kingdom or in India.