LB, CB (a child) and JB (a child), Re

J U D G M E N T

1. LORD JUSTICE LAWS: This is an appeal against a determination of the Upper Tribunal (Judge Gleeson) of 16 May 2013. The Upper Tribunal set aside the earlier decision of the First-tier Tribunal ("the FTT") (First Tier Tribunal Judge Jones) for error of law. The FTT dismissed the first appellant's appeal against the Secretary of State's refusal of asylum, humanitarian protection and leave to remain in the United Kingdom on human rights grounds. Although the Upper Tribunal set aside the FTT decision, it too dismissed the appeal against the Secretary of State's refusal. Permission to appeal to this court was granted by Moore-Bick LJ on 21 November 2013.

2. The first appellant is a Moroccan national born on 30 June 1976. She has two children (the second and third appellants) also Moroccan nationals respectively born on 2 January 2007 and 1 March 2010. For convenience I will refer to the mother simply as "the appellant".

3. The appellant and her husband arrived in the United Kingdom on 22 June 2006 on a family visit visa valid until 21 July 2006. They lived with the appellant's sister AB. The appellant's husband, it was said, left the family in about March 2010 after the birth of the second child. He has apparently made no contact since. It is said that AB has acted as a co-parent to the children. The appellant has another elder sister and a brother in this country. All three of those siblings are British citizens.

4. Both of these two sisters are divorced with children of their own. AB has three aged 8, 11 and 15 at the time of the Upper Tribunal hearing. The other sister, T, has two children aged 13 and 2½. T and her children live nearby to the appellant and AB. T unhappily has significant health problems. There are also three other sisters and a brother living in Morocco.

5. The appellant's application to remain on asylum grounds was not made until November 2011. She has been here illegally since her visa expired on 21 July 2006. The appeal in this court is solely concerned with her claim under Article 8 of the Human Rights Convention. Permission to appeal from the FTT to the Upper Tribunal was given primarily on the ground that the FTT, which did not believe the appellant's account of her estrangement from her husband, had not properly considered the best interests of the children having regard to section 55 of the Borders, Citizenship and Immigration Act 2009 and the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

6. Under the heading "Background" this appears at paragraph 9 of the Upper Tribunal determination:

"[AB] and the appellant regarded themselves as raising all of their children as siblings in a family unit. [AB's] children were said to regard the appellant as a second mother, and [AB] stated that she treated the appellant's children as though they were her own. [AB] provided the appellant with money (presumably after January 2012 when the family friend ceased doing so) and with constant support. The cousins enjoyed living as a family unit and regarded themselves as siblings."

7. I will deal first with what I think can be treated as a discrete complaint, although in the grounds it is subsumed under a heading to the effect that the Upper Tribunal's findings did not satisfy the requirements of a detailed enquiry into the best interests of the affected children, as explained in authority such as ZH (Tanzania ) particularly at paragraph 29 and MK (best interests of child) India [2011] UKUT 00475. This discrete complaint is that the Upper Tribunal should not have "rejected" the social worker's report, which was, and should have been, treated as a valuable means of ascertaining the direct wishes of the children. In order to introduce this it is necessary to look at paragraph 40 of the Upper Tribunal's decision which is in these terms:

"I next considered whether the extended family lifestyle being pursued was such that removal of the appellant and her children is disproportionate. The evidence in the social work report, while it reflects the family relationships, is not objective as to the relative merits of living in the United Kingdom or Morocco, since the social worker has no knowledge of that. The report is emotive and lacking in objectivity overall and is of less assistance than I had hoped in assessing the best interests of the children involved."

8. Miss Jegarajah, for the appellant, has submitted (supported by Miss Bronwen Jones) that this was a document of great importance given the claims about family relationships in the case; it was, and should have been, treated as a valuable means of ascertaining the true nature of the family relationships in question and the direct wishes of the children in this matter. I think this criticism misdescribes the Upper Tribunal's treatment of the social worker's report at paragraph 40. The Upper Tribunal Judge accepted that the report "reflects the family relationships". The Upper Tribunal Judge considered, however, that it was not objective as regards the relative merits of living in the UK or Morocco and was emotive and lacking in objectivity overall.

9. I have of course read the report. I accept that the social worker, who as Miss Jegarajah emphasised this morning spent over two hours with the family, has given a painstaking account of the relationships. As Miss Jegarajah submits in her skeleton (paragraph 22(1)) the report shows that the appellant's daughters are "well adjusted and happy children who are attached to their mother and extended family". In my judgment there is no reason to suppose that the Upper Tribunal Judge did not take account of that. I will return to the Upper Tribunal decision shortly. However the passage in the report, which I apprehend the Upper Tribunal found particularly unhelpful, appears in section 6 of the document as follows:

"The transition between, modern, settled, liberal and secure British life to a completely different environment would be huge. The children currently have no understanding or experience of Moroccan life, and it is likely that there would be little to any family support. There would be considerable cultural changes that the children would have to try and reconcile and without doubt these would be incredibly unsettling, this cannot and should not be minimised. It is therefore my opinion that the children will have a much better quality of life should they remain in the UK, and as such to remain in the UK would be in their best interests."

10. While another judge (or for that matter this court) might not have used the same critical language as Upper Tribunal Judge Gleeson, these somewhat sweeping remarks (by a person who as a social worker candidly acknowledged (section 4, page 122 of the bundle) that she is by no means an expert in current Moroccan culture) do justify, as I see it, a good deal of reserve on the part of the decision-maker.

11. I return to the Upper Tribunal decision. The essence of the decision, after those observations made concerning the social worker's report, appears at paragraphs 41 to 45:

"41. I accept that the appellant visits and helps her sister [T] and that she is helpful to both sisters in coping with school matters and general support. They have developed a significant degree of private life. I have considered carefully whether the levels of mutual dependence between the three sisters are such that 'family life' in Kugathas terms, has been established. I am not satisfied that it has. The extended family grouping amounts simply to this: that two of the sisters live together and share the care of their children, and one or both of them help out the third sister. That is private life, but the sisters are all adults and the level of dependency established between them is not sufficient to amount to family life.

42. The appellant's daughters are very young and their periods of residence in the United Kingdom are relatively brief. They are only just of school and nursery age and are still at the stage when the appellant as their parent is their primary focus. Having been born when their mother was in the United Kingdom without leave is not sufficient to give them a right to a British education rather than a Moroccan education, although there may well be differences in the education available, there is no evidence before me to suggest that the girls will not be educated in Morocco if they return there with their mother. Return to Morocco with their mother is in their best interests, and even if educationally that may not be the case, the right to education is a qualified right, and not an absolute right to British education whatever the merits of the appeal overall.

43. I have considered the best interests of the other children; [AB's] children have been living with the appellant and her children for about three years and undoubtedly they enjoy interacting with their cousins. [T's] children also enjoy contact with their young cousins. All of them were tearful at the prospect of separation from their aunt and cousins. However, they are all still at an age where their primary relationships are with their own mothers and I do not consider that the sisterly feelings between these young children and the appellant's children, and indeed the appellant herself, are sufficient to outweigh the United Kingdom's right to control immigration.

44. This appellant has never had leave to remain in the United Kingdom. The situation regarding the absence of her children's father from their lives is unclear and the appellant has been regarded by the First-tier Tribunal as overstating the degree of separation. They are not yet divorced. The appellant has two sisters and a brother in the United Kingdom and three married sisters and a brother and her father as well perhaps as her husband in Morocco. There is no question of her losing custody of the children at their present young age unless she divorces her husband and seeks to remarry and her case is based on her not wishing to remarry.

45. Even having regard to the s55 interests of all the children involved, the appellant's case under Article 8 ECHR is not strong enough to outweigh the right of the United Kingdom to control immigration and this appeal must therefore fail. As stated in T ~(Jamaica ), where an appeal fails under Article 8 ECHR, it will be only rarely that it then succeeds under s55 and the present appeal is not such a case."

12. As I have said, the ground of appeal with which the complaint about the social worker forms part is broader. It is that the Upper Tribunal's enquiry into the issue of the children's best interests was insufficiently rigorous. It is said that there was no sufficient consideration of the effects of the appellant's removal on the family ties between her and her sisters and their children; and in particular the fact that it would mean that AB would be left looking after her own and T's children. This morning Miss Jegarajah took her argument to the point of a submission that because the Upper Tribunal "rejected", as she would have it, the social worker's report the family relationships were mischaracterised. The case should have been accepted very clearly as a family unit.

13. It is no disrespect to Miss Jegarajah if I indicate I think there is a short answer to this. In my judgment this is a matter of factual perception. In this somewhat unusual set of circumstances there may be differing factual perceptions among reasonable people; but it was for the Upper Tribunal to decide which factual perception properly reflected the evidence before them. In my judgment they were entitled to the perception they entertained and essentially described in the paragraphs I have set out. Miss Jegarajah's citation of authority did not undermine this conclusion.

14. The Upper Tribunal expressly had regard to the interests of the children of the two sisters (paragraph 43). To the extent that Judge Gleeson was obliged to do so, I consider that she did that adequately. It is not difficult in retrospect for an appellant in an Article 8 case like this to pick out this or that aspect of a family situation and then to criticise the judge for not picking it out herself. The Upper Tribunal is a specialist tribunal, and I think that this court should be at pains to accord a wide margin of appreciation to its good sense in evaluating the factors in an Article 8 case which go to the proportionality of the Secretary of State's decision to remove or to deport.

15. I would also say that the importance of firm immigration control can be undervalued in these cases. There is no acknowledgment of it in Miss Jegarajah's skeleton argument though of course, as she stated herself this morning, she was addressing the basis on which permission to appeal had been granted. Given the relevant legislation and Immigration Rules as they presently stand, elementary though it is immigration control has, in my judgment, to be regarded by the courts as a substantial feature of the public interest. The Upper Tribunal's emphasis in this case, for example at paragraph 44, on the fact that this appellant never had leave to remain in the United Kingdom, was well justified. It is sometimes said, as Lady Hale said in EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198 at paragraph 49, that:

"...a child is not to be held responsible for the moral failures of either of his parents."

Of course not; but that is not to say, as sometimes it is perhaps taken to say, that in a child case the importance of immigration control is in any way lessened. It is simply a question of what goes in the scale against it. It seems to me that the reasoning of this court in EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA (Civ) 874, to which Miss Jegarajah very properly referred us, with respect repays attention not least at paragraphs 49 to 56.

16. In the result there is in my judgment nothing in the complaint that the Upper Tribunal made insufficient enquiry into the best interests of the children, or mischaracterised (to the point where there was an error of law) the nature of the relevant relationships. The reasoning in the whole passage I have set out from paragraphs 40 to 45 demonstrates, in the circumstances of this case, a proper enquiry.

17. That is subject to the second ground of appeal, described in the respondent's skeleton argument (paragraph 24) as the real point in the appeal. This was the essential basis on which Moore-Bick LJ gave permission. He said:

"The proper approach to the obligation to treat as a primary consideration the best interests of any child affected by the removal of an adult is still not free from difficulty. In this case it is arguable that when assessing the best interests of the children the tribunal wrongly proceeded on the assumption that the appellant would be returned to Morocco and that their best interests would then be served if they were removed with her. It is arguable the tribunal should have started by asking itself whether and to what extent their interests would be better served by remaining with the appellant in this country before deciding whether the removal of the appellant, together with the children, was a proportionate response to the need to implement immigration policy."

This is how it is put in Miss Jegarajah's skeleton. At paragraph 31 it is said:

"It is unlawful for the UTJ [Upper Tribunal] to approach the discrete question of the best interests assessment of the children as if it was predicated on the removal of the parent."

18. It is true, as Mr Rowe QC for the respondent acknowledges in his skeleton, that there are statements of high authority to the effect that in assessing the proportionality of a parent's removal from the United Kingdom the interests of the child or children should be considered first (see, for example, per Lady Hale in ZH (Tanzania ) at paragraph 26 and MK (India ) at paragraph 19). That reflects the now well-established characteristic of these cases that the interests of the child are a "primary consideration". That phrase is not free from difficulty. Perhaps I may be forgiven for repeating a short passage from what I said in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA (Civ) 550 at 550 at paragraph 44:

"What sense is to be given to the adjective 'primary'? We know it does not mean 'paramount' – other considerations may ultimately prevail. And the child's interests are not 'the' but only 'a' primary consideration – indicating there may be other such considerations which, presumably, may count for as much. Thus the term 'primary' seems problematic. In the course of argument Mr Auburn accepted that 'a primary consideration' should be taken to mean a consideration of substantial importance. I think that is right."

19. The vice which Moore-Bick LJ thought might be present in this Upper Tribunal determination was not, as I see it, a quibble about the temporal ordering of the Upper Tribunal's findings. Rather it rests in the question whether the Upper Tribunal simply assumed that the appellant should be returned to Morocco; and therefore likewise assumed that the children should go too, there being really no contest but that their best interests required that they remained with their mother.

20. To articulate her argument Miss Jegarajah in her skeleton cited Sir Richard Buxton's grant of permission to appeal in TM (Sri Lanka ) C2/2012/3427, a case which has not been the subject of any final determination because it was subsequently settled. The argument there was that the impugned decision was arguably flawed:

"because the Secretary of State assumed that the parents would be in Sri Lanka and it would be in the child's best interests to joy them, but when determining the child's best interests the Secretary of State arguably has to consider whether the parents should stay in the UK because it is in the child's interest to do so so the Secretary of State erred in conflating the two questions".

21. In this case the bold statement in paragraph 42 of the Upper Tribunal's determination: "Return to Morocco with their mother is in their best interests", seems to fuel the argument that the Upper Tribunal Judge assumed that the appellant must be removed and that the children should go with her. The reasoning is compressed and perhaps not ordered as clearly as it might be. However, on an examination of the whole decision I have concluded that no such assumption was made. First it is surely right that, as is asserted in Mr Roe's skeleton (paragraph 29), it was self-evident these two young children should remain with their mother whether here or in Morocco. There was no argument to the contrary.

22. In my judgment there was no assumption that the appellant must be removed to Morocco. The balance of the reasoning in paragraph 42 through to paragraph 45 to my mind demonstrates the contrary; and balance is the right word. The judge carried out a balancing exercise in which it was implicit that if the children's interests were, however artificially, looked at purely in isolation, no doubt they would be best served by their remaining here. But overall, so it was concluded, the Article 8 case was not strong enough to prevail over the public interests in immigration control. In my judgment that was a perfectly justifiable conclusion.

23. For all those reasons, I would dismiss this appeal.

24. LORD JUSTICE FLOYD: I agree.

25. LORD JUSTICE VOS: I also agree.